Coughlin 2000 - Comparison of Admini Law of Catholic Church and US

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A Comparison of the Administrative Law of the

Catholic Church and the United States
John J. Coughlin
Notre Dame Law School
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A COMPARISON OF THE ADMINISTRATIVE
LAW OF THE CATHOLIC CHURCH
AND THE UNITED STATES
Rev. John J. Coughlin, O.F.M.*
I. INTRODUCTION
Some years ago, an international symposium of jurists described
administrative law as encompassing
the entire range of action by government with respect to the
citizen or by the citizen with respect to the government, ex-
cept for those matters dealt with by the criminal law, and
those left to private civil litigation where the government's
only participation is in furnishing an impartial tribunal with
the power of enforcement.'
The broad parameters of the concept of administrative law attest
to its importance in any legal system. Indeed, for at least the past
fifty years, comparative legal scholars have focused on diverse na-
tional systems of administrative law. 2 Canonists have also contrib-
* Assistant Professor of Law, St. John's University School of Law.

J.C.D., J.C.L., Pontifical Gregorian University; J.D., Harvard Law School;
Th.M., Princeton Theological Seminary; M.A., Columbia University; B.A.,
Niagara University. Fr. Coughlin formerly served as a law clerk to Hon. Fran-
cis X. Altimari of the United States Court of Appeals for the Second Circuit.
The author wishes to thank Most Reverend Raymond L. Burke, Monsignor Jo-
seph Punderson, and Elizabeth A. Chappell for their many helpful suggestions
during the preparation of this Article.
Loyola of Los Angeles Law Review would also like to thank Most Rev-
erend Raymond L. Burke and Monsignor Joseph Punderson for their assistance
in reviewing church sources. As the majority of the church sources are in
Latin, it was beyond the expertise of the Law Review to verify the contents of
the writings.
1. Henry J. Friendly, New Trends in Administrative Law, MD. B. J., Apr.
1974, at 6, 9.
2. See, e.g., ZAIM M. NEDJATI & J.E. TRICE, ENGLISH AND CONTINENTAL
SYSTEMS OF ADI~fNISTRATIVE LAW (1978); PAPERS IN COMPARATIVE PUBLIC
81
LOYOLA OFLOS ANGELES LA WREVIEW [Vol. 34:81
uted to this area of comparative law. 3 The author believes that this
Article represents the first attempt to compare the procedural re-
quirements of administrative justice in canon law with those of the
law of the United States.
Specifically, this Article compares the procedure for adminis-
trative law at the Supreme Tribunal of the Apostolic Signatura and at
the United States Supreme Court. 4 The canonist refers to the "con-
tentious-administrative" process to describe recourse against an ad-
ministrative act which is brought to the Apostolic Signatura.5 The
American jurist speaks of the "judicial review" of administrative ac-
tions, which is entrusted to the federal courts and may culminate at
ADMINISTRATION (Ferrel Heady & Sybil L. Stokes eds., 1962); 1 WILLIAM

WADE ET AL., ADMINISTRATIVE LAW: THE PROBLEM OF JUSTICE, AMERICAN
AND NORDIC SYSTEMS (Aldo Piras ed., 1991).
3. See FRANCO BOLOGNINI, ATTI DELL'NCONTRO INTERDISCIPLINARE SU
"LA TUTELA DELLE SITUAZIONI GIURIDICHE SOGGETTIVE NEL DIRITTO
CANONICO, CIVILE AMMINISTRATIVO" (1991); Antonio Vitale, Differenze e
convergenze dei principi della giustizia amministrativa civile e canonica, 98
MONITOR ECCLESIASTICUS 362 (1973). For a brief overview of English and
Continental systems of administrative justice in comparison to ecclesiastical
administrative justice, see PAUL HAYWARD, ADMINISTRATIVE JUSTICE
ACCORDING TO THE APOSTOLIC CONSTITUTION "PASTOR BONUS" (1993). For
intra-comparative studies of ecclesiastical administrative justice in different
nations, see Zenon Grocholewski, I Tribunali regionali amministralivi rela
chiesa, in DE IUSTITIA ADMINISTRATIVA IN ECCLESIA 135, 156 (Pio Fedele ed.,
1984); Edward M. Egan, De consi/iis administrativisecclesiasticisin civ. foed.
amer. sept. constitutis, 67 PERIODICA 16 (1978); Michael R. Quinlan, De
schemate commissionum administrativarum in Britannia et de sic dicto
<<ombudsman>> a nova zelanda proposito, 67 PERIODICA 607, 620-25
(1978).
4. The "Apostolic Signatura," a short form of the title given in 1983 CODE
c.1445, § 1 (originally promulgated at Codex Juris Canonici autoritateloannis
Pauli Pp. I promulgatus, 85 AAS 1 (1983)) (the English translation, THE
CODE OF CANON LAW (Canon Law Soc'y of Gr. Brit. & Ir. trans., 1983), was
followed for this Article), to the "Supreme Tribunal of the Apostolic Signa-
tura" ("Supremum Signaturae Apostolicae Tribunal"), will be used throughout
this Article. Likewise, the United States Supreme Court is often referred to as
the "Supreme Court." While the adjective "American" ordinarily includes all
the countries of South and North America, it is employed throughout the Arti-
cle to describe the United States of America.
5. See generally 1983 CODE cc.1501-1670 (describing the contentious trial
process).
November 2000] COMPARISON OFADMINISTRATIVE LAW 83
the Supreme Court.6 Despite the difference in terminology, both

canon law and federal law furnish procedures by which an individual
may bring recourse from an act of administrative power to the re-
spective supreme tribunal As supreme tribunals, both the Apostolic
Signatura and the Supreme Court constitute the final guardians
against the unlawful exercise of administrative power.7
On average, the Apostolic Signatura entertains approximately
thirty cases of administrative recourse per year.! These cases are di-
verse in nature and concern matters such as: the removal of a pastor,
the dismissal of a religious, 9 the suppression of a parish, the suppres-
sion of a religious house, the disputed election of a superior general
and council, the revocation of the faculty to hear confessions, the
suppression of a faculty of theology, the dismissal of a professor
from an ecclesiastical faculty, the expulsion of a religious from a
diocese, the prohibition of a layman from participating in the parish
liturgy due to public scandal, the transfer of a pastor, and the validity
of action taken by the provincial chapter in an institute of conse-
crated life. 10
The Supreme Court hears approximately one hundred fifty cases
a year," of which only a small fraction are principally concerned
with administrative justice.' 2 Like the work of the Apostolic Signa-
tura, the cases of administrative justice before the Supreme Court
cover a large scope. They include matters of economic regulation,
health and safety regulation, social security and welfare, immigration
6. See generally Charles H. Koch, Jr., Judicial Review of Administrative

Discretion, 54 GEO. WASH. L. REv. 469 (1985) (discussing restrained judicial
review of administrative decisions).
7. See 1983 CODE c.1445, § 2; LAURENCE H. TRIBE, AMERIcxN
CONSTITUTIONAL LAw 23-61 (2d ed. 1988).
8. See Zenon Grocholewski, La giustizia amministrativa presso la Signa-
turaApostolica, 4 Ius ECCLESiAE 3, 4-5 (1992).
9. A "religious" is a member of a religious community, such as a Domini-
can, Jesuit; Benedictine, etc.
10. See Grocholewski, supra note 8, at 14.
11. See Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Impli-
cations of the Supreme Court's Limited Resources for Judicial Review of
Agency Action, 87 COLUM. L. REv. 1093, 1093 (1987).
12. See id. at 1094.
LOYOLA OF LOS ANGELES LA WREVIEW [Vol. 34:81
and deportation, education, housing and urban development, and the

environment, to name a few areas of concern.13
There are many things in common between the two bodies of
law. The comparison of the two discloses three fundamental ele-
ments in common. First, the subject is the private person, who al-
leges some injury as a result of an administrative act.' 4 Second, the
object consists of the single administrative act, posited by a public
organ of government, which allegedly caused some injury. Third,
the process comprises that set of rules which is to be followed when
the private person challenges the single administrative act. Accord-
ingly, this study focuses on the review, by each of the supreme tribu-
nals, of a single administrative act
5
which is alleged by a private per-
son to have caused some injury.'
In making the comparison between canon law and American
Administrative law, this Article relies on three basic procedural
models to explain the organization of the different systems.16 In the
first procedural model, termed "hierarchical recourse," the superior
of the authority who posited the administrative act serves as judge of
the case. 17 Elements of this model are evident in the administrative
procedure of both canon law and United States federal agencies. The
13. No reliable longitudinal study could be located that segregated the

numbers of such cases heard by the Supreme Court into such categories. See
id. at 1096-110.
14. In canon law, the subject would include real persons and private juridic
persons. See 1983 CODE c.116, § 2. Likewise, American law has long recog-
nized certain legal rights of private corporations along with real persons. See
Old Dominion Copper Mining & Smelting Co. v. Lewisohn, 210 U.S. 206, 216
(1908) (reasoning that a corporation is its own entity, despite changing mem-
bers and stock trading, and therefore can be tried in court like a person).
15. Since this Article compares the two supreme tribunals, it concerns the
review of the administrative act itself, as well as any procedure through which
recourse against the act has been brought prior to the supreme tribunals. In
canon law, the prior process is one of hierarchical recourse; in American law,
the process involves agency review of its own action and then judicial review
in the lower federal courts. Compare 1983 CODE cc.1732-1739 (describing the
process for recourse against administrative decrees), with Chevron U.S.A., Inc.
v. Natural Res. Def Council, Inc., 467 U.S. 837, 843-44 (1984) (stating that an
agency is given express authority to "fill any gap" in a particular statute, so
long as it does not conflict with congressional intent).
16. See Ignacio Gordon, S.J., De iustitia administrativaecclesiastica, tum
transacto tempore tum hodierno, 61 PERIODICA 251, 253-54 (1972).
17. See id.
second model, termed "single jurisdiction," depends on judicial re-

view of administrative acts rather than the establishment of a sepa-
rate system of administrative tribunals for this purpose.'" Judicial
review of administrative acts by the United States federal courts
would exemplify the single jurisdiction approach. In contrast, a third
model of "double jurisdiction" requires, in addition to an ordinary
judicial tribunal, a separate administrative tribunal which alone is
vested with jurisdiction over acts of administrative power.' 9 To a
certain extent, the Second Section of the Apostolic Signatura fits this
modeL
Whatever the procedural structure for an appeal against an act of
administrative power, one who exercises administrative power is
vested with the discretion to choose between alternative courses of
action.20 Located at the heart of administrative law, discretion en-
ables one who exercises administrative power to decide each case on
its own merits. One commentator has suggested that "[d]iscretion is
a tool, indispensable for [the] individualization ofjustice ....Rules
alone, untempered by discretion, cannot cope with the complexities
of modem government and modem justice.",21 Many such decisions
emerge from discretionary judgments about what is good, fair, and
just in a given situation. It seems to follow that the exercise of ad-
ministrative discretion is fundamentally a human activity.22 When
either the Apostolic Signatura or the Supreme Court engages in the
judicial review of an act of administrative power, the tribunal's
function often amounts to the review of a discretionary decision.Y
18. See id.

19. See id.
20. See EDUARDO LABANDEIRA, TRATADO DE DERECHO ADMINISTRATIVO
CAN6NICO 271 (1988).
21. KENNETH CULP DAvIs, DISCRETIONARY JUSTICE: A PRELIMINARY
INQUIRY 25 (1969).
22. St. Thomas Aquinas developed the understanding of the actus humanus
from the Aristotelian notion that a human act involved the use of free will and
the faculty of reason. See ST. THOMAS AQUINAS, SUMMA THEOLOGICA 615-
17 (1926) [hereinafter SUMMA TI-EOLOGICA]; see also ARISTOTLE, Nico-
machean Ethics, in 2 THE COMPLETE WORKS OF ARISTOTLE 1752, 1754
(Jonathan Barnes ed., 1984) (arguing that what is done under compulsion or by
reason of ignorance is involuntary).
23. See Koch, supra note 6, at 471-78. See generally John P. Beal, Con-
fining and StructuringAdministrativeDiscretion, 46 JURIT 70, 70-106 (1986)
To be sound, any discussion of these administrative processes must

take this fact into account.
To give the reader greater background, a short discussion of the
methodologies employed in canon law and American law is in order.
The canon law is designed to establish a just and equitable order for
the Catholic community. To this end, the church is governed by the
law set forth in the Code of Canon Law, 24 as well as by local laws
and customs. The sources of ecclesiastical law include sacred
Scripture and tradition, divine and natural law, ancient roman law,
magisterial pronouncements as well as contemporary interpretations
and jurisprudence of the various Roman congregations.2 5 To a large
extent, the canonist views the law as an ideal, reflecting an eternally
valid set of truths and principles to guide the conduct of the pres-
ent.2 6 As an ideal corpus of rules and principles, canon law serves an
important pedagogical role for the members of the church who aspire
to live in conformity with the ideal. A system of dispensations,
which are granted through administrative acts, acknowledges that the
ideal embodied within the law does not apply to every case and may
sometimes be too severe. Ecclesiastical law is, thus, never seen as
an end in itself, but only as the servant of the Christian tradition. 8
(discussing the uses of administrative discretion and justice as exercised by ec-

clesiatical officials).
24. 1983 CODE.
25. See John A. Alesandro, GeneralIntroduction, in THE CODE OF CANON
LAW: A TEXT AND COMMENTARY 1-2 (James A. Corriden et al. eds., 1985)
(this book is generally referred to as AMERICAN COMMENTARY).
26. See id. at 13-14.
27. See Charles Lefebvre, Equity in Canon Law, in EQUITY IN THE
WORLD'S LEGAL SYSTEMS: A COMPARATIVE STUDY 100-03 (Ralph A. New-
man ed., 1973).
28. For a summary of some of the numerous theories about the relationship
between canon law and theology, see Ladislas Orsy, S.J., Theology and Canon
Law: An Inquiry Into Their Relationship, 50 JuRIST 402, 418-29 (1990). As
illustrative of the theories, see, for example, WILHELM BERTRAMs, DE
RELATIONE INTER EPISCOPATUM ET PRIMATUM. PRINCIPIA PHILOSOPHICA ET
THEOLOGICA QUIBUS RELATIO IURIDICA FUNDATUR INTER OFFICIUM
EPISCOPALE ET PRIMATIALE (1963) (explaining that canon law studies the ex-
ternal juridic realities of philosophical and theological truths); EUGENIO
CORRECCO, THEOLOGIE DES KIRCHENRECHTS: METHODOLOGISCHE ANSATZE
96-107 (1980) (arguing that canon law should not be defined so much as ordi-
natio rationis,but rather as ordinatiofidei);GIANFRANCO GHIRLANDA, S.J., IL
DIRITTO NELLA CHIESA MISTERO DI COMUNIONE: COMPENDIO DI DIRITTO
November 2000] COMPARISON OFADMINISTRATVE LAW 87
Just as with all other aspects of ecclesiastical law, administrative

justice is intended to reflect a theology that "fully correspond[s] to
the nature of the church, especially as it is proposed by the teaching
of the Second Vatican Council." 29 Specifically, it is conceived as
being consistent with the Dogmatic Constitution, Lumen Gentium. 30
Certain "methodological options" are exhibited in the Dogmatic
Constitution of the church, establishing the parameters of authentic
ecclesiology. 3 1 Perhaps the prime posteonciliar methodological op-
tion is to adopt an ecclesiological perspective that "describes the
church as an object of faith, the study of which must be infused with
faith."3 2 For the believer, the church is not merely an external or-
ganization, but a deep and profound coimunio.33 From a theological
ECCLESIALE 15-45 (1990) (indicating that canon law reflects the mystery of
hierarchical communion in the church); LABANDEIRA, supra note 20, at 48-49
(indicating that given the sacramental character and special mission of the
church, canon law, in its existence and authoritative interpretation, remains al-
ways subject to ecclesiastical authority); KLAUS MORSDORF, SCHRIFTEN ZUM
KANONISCHEN RECHT (Winfiied Aymans et al. eds., 1989) (indicating that
canon law is a theological discipline with a juridical method); Pio Ciprotti,
Stato attuale e prospettive della giustizia amministrativa canonica, 98
MONITOR ECCLE IASTICus 354-61 (1973) (arguing that canon law may be
considered as a proper object ofjuridical science).
29. Ioannes Paulus Episcopus Pp. II, Constitutio Apostolica Sacrae Disci-
plinae Leges, 75 AAS II xi (1983); see also Ioanues Paulus Pp. II, I!Diritto
Canonico inserisce ilConcilio nella nostra vita, 15 COMUNICATIONES 128
(1983) (stating that the Pope speaks of the new Code as the "last conciliar
document" or "ultimo documento conciliare").
30. LuMEN GENTIUM (originally promulgated at Sacrosanctum Concilium
Oecumenicum Vaticanum II, Constitutio Dogmatica de Ecclesia, 57 AAS 5
(1965)).
31. See Angel Anton, S.J., PostconciliarEcclesiolog, Expectations, Re-
sults and Prospects for the Future, ii 1 VATICAN II: ASSESSMENT AND
PERSPECTIVES, TWENTY-FIvE YEARS AFTER (1962-1987) 412-13 (Rene Lato-
urelle ed., 1988).
32. Id.
33. Communio may be described as the unity of the College of Bishops,
dispersed throughout the world, with the Pope, as the Bishop of Rome and suc-
cessor to St. Peter, at the head of this college. For an authoritative description
of the reality of communio and its centrality to the ecelesiology of Vatican II,
see Congregatio pro Doctrina Fidei, Litterae ad Catholicae Ecclesiae Episco-
pos de aliquibus aspectibus Ecclesiaeprout est Communio, 85 AAS 828, 838-
50 (1993). See also Anton, supra note 3 1, at 413 (describing the ecclesiastical
ministry as in intimate communion with all those who have been registered in
Christ and ordained to transmit the blessings of redemption to the faithful).
and canonical viewpoint, this means that the church is thought to

enjoy a juridic order that reflects the infinitely more dynamic and
pneumatic presence of the Holy Spirit "who builds up and animates
the Mystical Body of Christ, the People of God, transforms its mem-
bers into the children of glory and ensures for them the liberty of the
children of God, allows them to pray the prayer of Jesus (Rom.
8:15), and is operative in their apostolate. 34 Thus, the canonist op-
erates from the context that neither the mystery of the church, nor
any individual apostolic manifestation of that mystery, can be fully
explained by the concept of the modem juridic society.
Consistent with the methodological principle that appreciates the
church as an object of faith, canon law is viewed as sacred law, dis-
tinct from the civil law. 35 Although this Article attempts to compare
the systems of ecclesiastical and American administrative law, it
would be incomplete from the canonist's point of view to understand
the church's juridic order as merely an institutional structure directed
toward the common good. 36 Given the nobility of such a secular per-
spective, the canonist is nonetheless mindful that "the church is in
Christ as a sacrament or sign and as an instrument of intimate union
with God and of the unity of the whole human race.",37 The unique
mission of the church in human history requires that canon law be
34. Paulus Pp. VI, Allocutiones: Ad Praelatoset Officiales Tribunalis Sa-

crae Romanae Rotae, a Beatissimo Patre novo litibus iudicandis ineunte anno
coram admissos, 65 AAS 98, 98 (1973).
35. See id. at 99.
36. See Leo Pp. XIII, Litterae Encyclicae Satis Cognitum, 28 ASS 708, 710
(1895-96).
37. LuMEN GENTIUM para. 8. It seems necessary to note that the Council
went on to state: "This church, constituted and established as a society in this
world, subsists in the Catholic Church, as governed by the succession to Peter
and the bishops in communion with him ... ." Id. (emphasis added). For a
discussion of the meaning of the term "subsists" and its ecclesiological and
ecumenical implications, see Umberto Betti, O.F.M., Chiesa di Christo e Chi-
esa Cattolica, a proposito di un'espressione della Lumen Gentium, 61
ANTONIANUM 726 (1986). See also Francis A. Sullivan, S.J., The Significance
of the Vatican II Declaration that the Church of Christ "Subsists in" the Ro-
man Catholic Church, in 2 VATICAN II: ASSESSMENT AND PERSPECTIVES
TWENTY-FIVE YEARS AFTER, supra note 31, at 272-87 (stating that, according
to Vatican II, "subsists in"means that the Catholic Church is the only organi-
zation where the Church of Christ continues to exist with all those proper ties
and structural elements that it cannot lose).
ultimately measured, not by the standards of civil jurisprudence, but

rather by its fidelity to the sacred Scripture and tradition in which
God reveals himself.38 Canon law is thus a proper object of modem
juridical science, including, inter alia, the historical-critical method,
the contribution of the social sciences, and of course, the compara-
tive inquiry concerning cultural hermeneutics. 39 No critical method-
ology available to the canonist, however, may be permitted to evis-
cerate the authentic theological basis from canon law. The canonist
seeks to transcend modem methodology by always approaching the
juridic structure of the church as a manifestation of the deeper philo-
sophical and theological truths that flow40from faith, and most espe-
cially to sustain the reality of com1munio.
Due to its explicitly theological perspective, the canonical meth-
odology differs greatly from that of civil states and, in particular,
from that of the United States. 4 1 American jurists tend to understand
law not so much as an expression of immutable principles and ideals,
but rather as a pragmatic set of rules designed to achieve certain re-
sults in a given situation. 42 Since the legislature often drafts a par-
ticular statute to respond to a certain situation, American law is likely
to be far more detailed and complex than contemporary canonical
legislation. 43 In addition to statutory law passed by the legislature,
American law may also be the result ofjudicial activity. Judicial in-
terpretations and decisions in particular cases carry precedential
value for the resolution of like cases. When an American law fails to
38. See Charles J. Reid, Jr. & John Witte, Jr., Review Essay in the Steps of
Gratian: Writing the History of Canon Law in the 1990s, 48 EMORY L.J. 647,
655 (1999) (quoting sixteenth-century jurist Nicolaus Everardus describing
canon law as rooted in the teachings of the Bible and inspired by the Holy
Spirit).
39. For a description of the use of "cultural hermeneutics" in the stories that
law tells about culture, see MARY ANN GLENDON, ABORTION AND DIVORCE IN
WESTERN LAW 8-9 (1987).
40. See, e.g., St. Bonaventure, Itinerarium mentis in Detum, in 5 DOCTORIS
SERAPHICI S. BONAVENTURAE OPERA OMNIA 296 (1882).
41. For a general comparison of canon and American law, see Alesandro,
supra note 25, at 10-14.
42. See id. at 13.
43. To recognize the difference in approaches, one need only compare the
one-volume 1983 Code of Canon Law, which in the official version consists of
518 printed pages, to the main corpus of United States federal law, the eight-
volume United States Code, which consists of many thousands of pages.
yield justice, the normal route is not to grant a dispensation, but to

remake the law. In some cases, the legislature will pass a statute to
counteract a judicial decision.
Stemming from the political theory of thinkers such as John
Locke, the United States Constitution, and the Bill of Rights in par-
ticular, champions the protection of the individual against the power
of the state. 44 The perduring value of the document is evident from
the fact that what originated as a federation of thirteen original states
has endured through, inter alia, a major civil war, enormous indus-
trial development, and two world wars, to constitute a democratic
and republican form of government for one of the mightiest eco-
nomic powers in the history of the world.45
Even prior to independence, the English colonies followed in
principle the common-law tradition with a class of lawyers many of
whom were trained in London's Inns of Court.46 Indeed, during the
colonial period, almost as many copies of Blackstone's Commentar-
ies on the Laws of England were purchased by American lawyers as
by English. 47 These lawyers followed the common-law method in
which the resolution of particular disputes by the courts yielded a
corpus of law with precedential value. At the same time, the various
states, as well as the federal government, were permitted to alter the
common law through legislation. Both statutory and common law
tended to reflect an extreme individualism, often cloaked in the lan-
guage of formal natural rights. 48 The natural rights to contract and to
private property, for example, were invoked as legal principles to
protect the entrepreneur from many forms of government
44. See U.S. CONST. amends. I-X.

45. See KONRAD ZWEIGERT & HEIN KOTZ, INDRODUCTION TO
COMPARATIVE LAW 247-63 (Tony Weir trans., 2d rev. ed. 1992) (describing
the historical development of American legal methodology).
46. See ERWIN N. GRISWOLD, LAW AND LAWYERS IN THE UNITED STATES:
THE COMMON LAW UNDER STRESS 5-11 (1965).
47. See ZWEIGERT & KOTZ, supra note 45, at 247-48. For a fuller discus-
sion of the influence of Blackstone's thought on American lawyers, see
MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860,
at 16-17 (1977).
48. See M. Stuard Madden, The Vital Common Law: Its Role in a Statutory
Age, 18 U. ARK. LITTLE ROCK L. REv. 555, 572-74 (1996) (describing the
"natural law" antecedents of common law).
regulation. 49 Pursuant to pristine liberal political theory, freedom

was defined as the absence of government restraint.: °
Along with the enormous economic development that followed
the Civil War came the rise of the American law school. 5' No longer
would American lawyers be trained primarily in England or as ap-
prentices to established American lawyers. Under the impetus of Jo-
seph Story, the Harvard Law School was established, where Dean
Langdell would institute the so-called "case method" by which stu- 52
dents learned the law through the consideration of specific cases.
One brilliant adherent of the new methodology, Oliver Wendell
Holmes, Jr., repudiated the formalism of the English common law.
In a famous passage, Justice Holmes declared:
The life of the law has not been logic: it has been experi-
ence. The felt necessities of the time, the prevalent moral
and political theories, intuitions of public policy, avowed or
unconscious, even the prejudices which judges share with
their fellow-men, have had a good deal more to do than the
syllogism53in determining the rules by which men should be
governed.
Roscoe Pound further developed the sociological implications of
Holmes's legal realism. 54 Pound rejected the abstract content of
formal legal principles and advocated a methodology in which law
continually interacts with the prevalent political, economic, and so-
cial circumstances of a given society.5 5 Along similar lines, H.L.A.
49. As late as the beginning of the twentieth century, the natural-law right
to contract was invoked by the Supreme Court to invalidate a New York statute
which limited bakers' work to a ten-hour day and sixty-hour week. See
Lochner v. New York, 198 U.S. 45, 46 n.1, 61 (1905).
50. See Gerald B. Wetlaufer, Systems ofBelief in Modern American Law: A
Viewfrom Century's End, 49 AM. U. L. REv. 1, 9 (1999) (describing liberal-
ism in America).
51. See ZWEIGERT & KOTz, supra note 45, at 251-52.
52. For an historical account of American legal education and its implica-
tions for legal method, see ESTHER LUCILLE BROWN, LAWYERS AND THE
PROMOTION OF JUSTICE 66-76 (1938).
53. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1951).
54. See Roscoe Pound, The Need for a Sociological Jurispndence, 19
GREEN BAG 610 (1907).
55. See id. at 611-12. Dean Pound was also a vigorous advocate of the
teaching of comparative law in the law school curriculum. In 1908, Louis
LOYOLA OFLOS ANGELES LAWREVIEW [Vol. 34:81
Hart argued that the judges create law in difficult or "indeterminate

cases" based
56
on the conventional social rules accepted by the given
society.
A concomitant development in American legal philosophy has
been the focus on the "rule of law" as a prerequisite for the protec-
tion of individual freedom in the modem liberal state. According to
Lon Fuller, the very essence of the rule of law is that in acting upon
the citizen, a government will faithfully apply rules previously dis-
closed as those to be followed by the citizen and determinative of his
rights and duties.5 7 As Ronald Dworkin has explained it: "Law in-
sists that force not be used or withheld, no matter how useful that
would be to ends in view, no matter how beneficial or noble these
ends, except as licensed or required by individual rights and respon-
sibilities flowing from past political decisions about when collective
force is justified. ' 58 Dworkin differs with Hart in that, as Dworkin
sees it, judges resolve difficult cases not simply by imposing con-
ventional values, but by consulting past precedents and cases which
contain "the soundest theory of law." 59
Based on these descriptions of the rule of law, two conclusions
may be drawn. First, laws are intended to be promulgated, clear,
prospective, coherent, stable, and applied with neutrality to all per-
sons. Second, while the concept of the rule of law is not per se in-
consistent with the theory of natural law, it does not presume a moral
ontology. Rather, law finds its source in a process in which diverse
beliefs, dispositions, and values are critically juxtaposed under the
Brandeis, who like Holmes taught at Harvard and later became a Justice of the
Supreme Court, wrote a legal brief for the Supreme Court case of Muller v.
Oregon, 208 U.S. 412 (1908), which attracted great attention in legal circles
since it transcended common law principles to include a copious amount of
factual data and comparative law material. Another statement of this approach
can be found in K.N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND
ITS STUDY 12 (1951). For a general discussion of legal realism and the socio-
logical jurisprudence, see WILFRED E. RUMBLE, JR., AMERICAN LEGAL
REALISM: SKEPTICISM, REFORM AND THE JUDICIAL PROCESS (1968).
56. See H.L.A. HART, THE CONCEPT OF LAW 113 (1961).
57. See LON L.FULLER, THE MORALITY OF LAW 46-70, 94 (1964).
58. RONALD DWORKIN, LAW'S EMPIRE 93 (1986).
59. See E. Philip Soper, Legal Theory and the Obligation of a Judge: The
HartDworkin Dispute,75 MICH. L. REv. 473, 474-75 (1977).
scrutiny of reason. These criteria would apply to law made by both

the legislature and the judiciary.
A more recent trend in American legal philosophy, the so-called
"critical-legal-studies" approach, rejects the notion of the rule of law.
As one adherent puts it: "There is never a 'correct legal solution'
that is other than the correct ethical or political solution to that legal
problem. 60 In one sense, the critical-legal-studies approach takes
legal realism to its logical conclusion. It argues that although the
form of a particular law may satisfy all the requirements of the rule
of law, the substance, content, or goal of the law inevitably reflects
moral and ethical values. 6 ' To put it simply, legislators and judges
often impose their own values and beliefs about what is good for so-
ciety. For the critical theorist, the problem with a neutral rule of law
is that in a society characterized by moral, religious, and political
pluralism, there are inevitably competing conceptions of the "good."
Another thrust of the critical approach involves a radical critique of
liberal political theory itself. Roberto Unger argues that the only as-
pect of the human good to which liberal theory renders an adequate
account is individual freedom 62 Consistent with this account, "val-
ues are subjective."6 3 Even those values which may be held in com-
mon by members of a given group "are reducible to the qualities of
its individual members. 64 In particular, the critical theorists fault
the law of the liberal state for its failure to foster other fundamental
human goods such as the experience of membership and participa-
tion in "organic community. '65 The critical-legal-studies approach
points to an inherent contradiction in the rule of law of liberal theory.
In the pluralist society, the subjectivity of values denies the possibil-
ity of an objective morality. However, legislators and judges inevi-
tably impose conceptions of what is good or bad in human life as
authoritative.66 It should be noted that adherents of critical theory
60. Duncan Kennedy, Legal Education as Trainingfor Hierarchv, in THE

POLITICs OF LAW 47 (David Kairys ed., 1982).
61. See id.
62. See ROBERTO MANGABEIRA UNGER, KNOWLEDGE AND POLITICS 63
(1975).
63. Id.
64. Id.
65. See id. at 259-67.
66. Critical legal studies is not a monolithic position. The point expressed
have generally been more successful in deconstructing liberal theory

than in proposing realistic alternatives. At the same time, both the
liberal and critical theorists tend to eschew the inclusion of a moral
ontology, such as natural-law theory, within the conception of law.
To suggest that American legal methodology has jettisoned all
formal legal principles would, of course, be farfetched. Nonetheless,
a glance at contemporary casebooks used by American law students
discloses that economic analysis, along with historical, sociological,
and psychological information, is often regarded as of equal value to
legal principles. 67 Thus, in comparison to the canonical science,
American legal methodology reflects the pragmatic view that the op-
timal good to be achieved in a given concrete situation merits more
consideration than a set of ideal and immutable principles.68 This is
not to suggest that canon law is not practical, or that American law
lacks ideals. The point is simply to illustrate the two different meth-
odological perspectives.
In addition to this Introduction, the study consists of three main
Parts and a Conclusion. Part Two considers the procedures of ad-
ministrative law in canon law and federal law prior to final review at
each of the systems' supreme appellate courts. It discusses the issue
of the separation of powers from the perspective of the underlying
theological and philosophical claims proper to each system of law.
Part Three focuses on the structures and procedural law of the Ap-
ostolic Signatura and the Supreme Court. It explores the notion of
due process that is operative in each system of administrative law. It
also examines the jurisdictional parameters and competency of each
of the supreme administrative tribunals. Finally, with respect to the
broad theoretical issues raised by the separation of powers, due proc-
ess, and competence, Part Four endeavors to summarize the study's
modest contribution to the continuing project of comparative legal
scholarship. Thus, the study promises to be of interest to the diverse
fields of comparative law, administrative law, constitutional law, law
and religion, and jurisprudence.
above, however, is a common theme. See id. at 94.

67. See ZWEIGERT & KOTZ, supra note 45, at 256.
68. See Alesandro, supra note 25, at 13.
II. ADMINsTRATIVE LAW PRIOR TO REVIEW AT THE TRIBUNALS

This first Part compares the natures and procedures of adminis-
trative law prior to the contentious-administrative process at the Ap-
ostolic Signatura and judicial review at the Supreme Court. In canon
law, recourse may be brought against the single administrative act as
defined in the Common Norms of the 1983 Code. 69 The canonical
process is one of hierarchical recourse that culminates at the appro-
priate Dicastery of the Roman Curia.70 In comparison, according to
United States federal law administrative agency decision making oc-
curs through the distinct processes of rulemaking, formal adjudica-
tion, and informal adjudication, as stipulated in the Administrative
Procedure Act (APA). 71 The vast majority of adjudication of ad-
ministrative controversies in the American system follows a method
of informal adjudication generally conducted by an administrative
law judge whose decision may be appealed to the appropriate agency
head.
A. EcclesiasticalAdministrative Law
1. Nature of ecclesiastical administrative law

The Roman Catholic Church, which is presided over by the Ro-
man Pontiff as the Successor to Peter, is understood as a communio
of the particular churches.72 Each particular church or diocese is
governed by a bishop. 73 The promulgation of the 1983 Code by
Pope John Paul II constituted the translation of the theology of the
Second Vatican Council into orderly structures with practical ef-
fects. 74 The Dicasteries of the Roman Curia, on behalf of the Roman
69. 1983 CODE c.36, § 1.

70. "Dicastery" is a general term which refers to the secretary of state, nine
congregations, three tribunals, and the various councils and offices that com-
prise the Roman Curia. See generally PASTOR BONUS art 2, § 1 (originally
promulgated at Ioannes Paulus Pp. II, Constitutio Apostolica de Romana Cit-
ria, 80 AAS 841 (1988) (describing the canonical hierarchy)).
71. 5 U.S.C. §§ 551-559, 701-706, 1305,3105,3344, 6362 (1994).
72. See PASTOR BONUS art 1.
74. Indeed, the Supreme Legislator has referred to the new Code as the fi-
nal conciliar document "ultimo documento conciliare." See Ioannes Paulus
Pp. II,supra note 29, at 128-29.
Pontiff, exercise competence over petitions of remedy brought by in-

dividuals who allege some injury as a result of an act of administra-
tive power.75 A general pattern in the process of hierarchical re-
course involves recourse against a decision of the bishop to the
appropriate Dicastery.76 What follows is an attempt to elucidate the
juridic norms that are designed to render administrative justice in the
communio of the church."
a. judicial, legislative, and executive power
Canon law reflects the doctrine that a unified sacred power of
governance is vested in the office of the bishop by divine institu-
tion. 78 Canon 135, paragraph 1, of the 1983 Code states: "The
power of governance is distinguished into legislative, executive and
judicial., 79 The three functions are understood to flow from one sa-
cred power of governance, and accordingly, canon law declines to
adopt a rigid segregation of each power.80 Although canon law de-
clines to adopt a threefold separation of the powers of governance on
the basis of office, the distinction of functions has long been a fea-
ture of church governance. Historical evidence indicates that at least
75. See id.

76. See id.
77. See PASTOR BONUS art. 1.
78. See GHIRLANDA, supra note 28, at 255. Since the three powers are
vested in the office of the bishop, the tripartite distinction ought not be consid-
ered equivalent to the modem secular notion of three separate government
functions. See SEVERINO M. RAGAZZINI, O.F.M.CAP., LA POTESTA NELLA
CHIESA: QUADRO STORICO-GIURIDICO DEL DIRITrO COSTITUZIONALE
CANONICO 199-217 (1963); Guiseppe Lobina, La natura giuridico-pastoralee
l'ampiezza dell'esame di merito da parte dell'autoritW amministrativa supe-
riore di un provvedimento amministrativo, 99 MONITOR ECCLESIASTIcUS 238
(1974).
79. 1983 CODE c.135, § 1.
80. This understanding conflicts with the modem secular political theory
that assigns each of the three functions to a separate office or branch of the
government It should be noted, however, that given the complexities of mod-
em government, a complete separation seems neither possible nor desirable.
Thus, the executive branch of a government may routinely develop rules for
the administration of certain entitlements. At the same time, the case decisions
of the judicial branch may have binding force of law. See PETER L. STRAUSS,
AN INTRODUCTION TO ADMINISTRATIVE JUSTICE IN THE UNITED STATES 12-18
(1989).
as early as the sixth century, bishops were delegating their judicial

power to separate judges. 8 ' Likewise, the exercise of executive
power exercised on behalf of the bishop by the vicar general also
claims ancient historical roots. 82 When the 1917 Code of Canon Law
outlined the powers of governance that are proper to a bishop, it de-
lineated legislative, judicial, and coercive powers.8 3 The delineation,
however, was not intended in a technical sense.8 4 A distinction of
functions, nonetheless, was implicit in the former Code.85 Therefore,
the expressed inclusion of the tripartite distinction
86
in the 1983 Code
ought not be considered as entirely novel.
81. See Justinian, Novellae, in 3 CORPUS IURIS CIVILIS 123 (R Schoell &
G. Kroll eds., 1929).
82. See X 1.28.3. Pursuant to 1983 CODE c.131, §§ 1-2, c.134, § 1, the
power of the vicar general is ordinary and vicarious.
83. 1917 CODE c.335, § 1 (originally promulgated at Coder furis Canonici
PH X Pontificis Maximi iussu digestus Benedicti PapaeXV auctoritateprom-
ulgatus, 9 AAS 3 (1917)) (there is no English version as a canon in the 1917
Code specifically prohibited translation from the original Latin), specified the
Latin terms "legislativa, iudiciaria, coactiva." The corresponding canon in the
present code replaces "coactiva" with "exsecutiva," thus reflecting the general
modem view on the distinction among the powers of governance. See 1983
CODE c.135, § 1; see also 1917 CODE c.391, § 1 (explaining how the bishop
exercises legislative, executive, and judicial power).
84. The division in Canon 335, § 1, of the 1917 Code was not intended to
be technical in nature, but rather descriptive of the power of governance proper
to a diocesan bishop. See Francisco J. Urrutia, S.J., La potest&amministrativa
secondo ildiritto canonico, in DE IUSTITIA ADMINISTRATIVA INEccLEsIA 73,
90 & n.35 (Pio Fedele ed., 1984) [hereinafter Urrutia, La potesti]; Zenon Gro-
cholewski, Atti e ricorsi amministrativi, 57 APOLLINARIS 259, 264 (1984).
The same author has also noted that "[i]f [Canon 335, § 1] stated the power of
coercion alongside judicial and legislative powers, it was, in all probability, to
assert those functions of episcopal power that were more contested by secular
authorities for over one century." Francisco Urrutia, S.J., Administrative
Power in the Church According to the Code of Canon Law, 20 STUDIA
CANONICA 253, 254 n.2 (1986) [hereinafter Urritia, AdministrativePower].
85. Commentators on the 1917 Code developed various schema to delineate
the distinction of functions. See FELIX M. CAPPELLO, S.J., DE CURIA ROMANA
40-52 (1911); BENEDICT OJETrI, S.J., DE ROMANA CURIA 18-24 (1910). In
1925, Pope Pius XI attributed to Christ a threefold royal power- legislative,
judicial, and executive. See Pius Pp. XI, Quas primas, 17 AAS 593, 599
(1925). For a thorough discusssion of the division of the functions in the 1917
Code, see Urrutia, Lapotest6,supra note 84, at 75-83.
86. Cf Kevin Matthews, The Development and Future of the Administra-
tive Tribunal, 18 STUDIA CANONICA 1, 116 (1984) (stating that authors had
A significant aspect of the distinction of functions of the power

of governance is included in Title Three, "General Decrees and In-
structions," of Book One of the new Code.87 Here, the Code recog-
nizes two types of general decrees: a general decree and a general
executive decree. Relying on the Thomistic definition, Canon 29
states that a general decree is a proper law given by a competent
legislator to a community capable of receiving a law. 88 A proper law
may be described as (1) abstract and general in application, (2) a
norm that does not provide an answer to a specific problem, and (3) a
norm in anticipation of a future circumstance. 89 To issue a general
decree, which is proper law, requires legislative power.
Canon 31 establishes a second type of general decree which
does not require legislative power but executive power.90 A general
executive decree is issued by one who possesses executive power
within the limits of his competency. 9' This second type of general
decree would include instructions, guidelines, and policies to inter-
pret and apply a proper law. These might be described as supporting
documents which, nonetheless, have obligatory effect since they con-
stitute official explanations of what compliance with the law entails.
While general decrees as legislative acts constitute autonomous
proper law, general executive decrees comprise auxiliary documents
aimed at the maintenance of proper law in the community for which
they are intended.
long preferred "to speak of division of functions").

87. See 1983 CODE cc.29-34 ("De Decretis Generalibus et De Instructioni-
bus").
88. See id. c.29; 2 ST. THOMAS ACQUINAS, SUMMA THEOLOGICA 1017-18
(Fathers of the English Dominican Province trans., 1981).
89. See Willy Onclin, L 'organisationdes pouvoirs dans L 'Eglise, in ACTES
DU CONGRtS DE DROIT CANONIQUE: CINQUANTENAIRE DE LA FACULTt DE
DROIT CANONIQUE, PARIs, 22-26 AVRIL 1947, at 371 (1950); Willy H. Onclin,
The Church Society and the Organization of its Powers, 27 JURIsT 1, 13-14
(1967); Urrutia, AdministrativePower,supra note 84, at 255-56 & n.5.
90. See Pontificia Conunissio Codici Iuris Canonici Recognoscendo,
Transmission schematum canonum consultationis causa, 9
COMMUNICATIONES 227, 232-33 (1977).
91. See 1983 CODE c.31, § 1.
November 2000] COMPARISON OFADMINISTRATIPE LAW 99
b. the relationbetween executive power and administrativeacts

There is a direct relationship between the exercise of executive
power and administrative acts. 92 The Pontifical Commission for the
Revision of the Code of Canon Law considered general executive
decrees and instructions to be acts of administration. 93 Since the
same group of experts distinguished the power of governance into
legislative, judicial, and executive, one might conclude that the terms
"executive" and "administrative" are interchangeable. The concept
of administration in the 1983 Code, however, is not unequivocal
since it appears in several places throughout the Code to describe a
variety of different actions. To start, one might consider the topic of
Title IV of Book I, entitled "Singular Administrative Acts. ' 94 Canon
35 states that single administrative acts include decrees, precepts,
and rescripts directed toward particular individuals or juridic persons
by one who possesses executive power.95 First, pursuant to Canon
48, a single decree may be either a decision issued by a competent
executive authority for a particular case, imposing a resolution to a
controversy in accord with the norms of law, or a provision for a
particular case by a competent executive authority producing some
direct effect upon a specific individual or juridic person. 96 In either
case, a single decree does not suppose, by its nature, that a petition
has been made. Second, Canon 49 describes a single precept as "a
decree by which an obligation is directly and lawfully imposed on a
specific person or persons to do or to omit something .... ,, A sin-
gle precept presumes that some person or group has been remiss in
92. See Klaus M6rsdorf De Actibus Administrativis In Ecclesia, in lus

POPULI DEI, MISCELLANEA INHONOREM RAYMUNDI BIDAGOR 9-19 (1972).
93. The Introduction to the Schema, circulated during the consultation,
stated that general executory decrees, precepts, and instructions were of the
same general nature, "indolem generalen," as administrative acts. See Pontifi-
cia Commissio Codici Iuris Canonici Recognoscendo, supra note 90, at 233.
94. The Latin title, "De Actibus Administrativis Singularibus," is translated
here "Single Administrative Acts." The word "singular" is used by Urrutia.
See Un-atia,Administrative Power,supra note 84, at 257. In the Canon Law of
America Society's English translation of the Code and in the American Com-
mentary, the Latin word "singularibus" is translated as "individual."
95. See 1983 CODE c.35.
96. See id. cA8.
97. Id. c.49.
observance of the law. Third, Canon 59 supplies the two essential

elements of a rescript: (1) its object is the granting of a privilege,
dispensation, or other favor; and (2) it presumes that someone has
made a request for such from the competent authority. 98 Each of the
three types of single administrative acts may constitute the object of
the contentious-administrative process.99
Single administrative acts must be distinguished from other un-
derstandings of administration as they appear in the code.' 00 Re-
garding the financial management of public juridic persons, Canon
1276 requires that the Ordinary "carefully supervise the administra-
tion of all the goods."'' 1 Canon 1277 refers to "acts of extraordinary
administration," which require consent, and to acts "of major impor-
tance," which require only consultation or advice.' 0 2 The concept of
administration occurs at several places to describe the coordination
of activity necessary for the smooth operation of some public juridic
person. 0 3 Canon 473 refers to the "administrative responsibilities"
of the moderator of the diocesan curia.' 0 4 Canons 363 and 371,
Paragraph 2, convey an equally inclusive connotation in using the
term "apostolic administration" about the operation of a particular
church.' 0 5 Likewise, Canon 259 employs the noun with respect to
the running of a seminary.' 0 6 At the same time, the noun "adminis-
trator" appears at various places throughout the code in reference to
matters such as the governance of a missionary territory by an "Ap-
ostolic Administrator,"' 0 7 or the care, on a temporary basis, of a
98. See id. c.59, § 1.

99. See id. c.1732. The term "Ordinary" includes the Pope, diocesan bish-
ops, vicars general, episcopal vicars, and certain major superiors of clerical re-
ligious communities of pontifical right. See id. c.134, § 1.
100. See Michael R. Moodie, S.J., The Administratorand the Law: Authority
and its Exercise in the Code, 46 JUPJST 43, 45-46 (1986).
101. 1983 CODE c.1276, § 1.
102. Id. c.1277.
103. See generally Frank G. Morrisey, O.M.I., Ordinary and Extraordinary
Administration: Canon 1277, 48 JURIST 709 (1988) (explaining the evolution
of Canon 1277 and its existing effects on administration).
104. See 1983 CODE c.473.
105. See id. c.363, c.371, § 2.
106. See id. c.259, § 1.
107. See id. c.368, c.371, § 2.
November2000] COMPARISONOFADMNISTRATIVELAW 101
diocese by the "Diocesan Administrator,"' 0 8 and the conduct of a

parish by a "Parochial Administrator."' 0 9 When the Code deals with
process in Book VII, the first canon refers to both "administrative
power" and "administrative tribunals."" 0
Pursuant to Canon 1732, in order to be contested, the particular
act must be "given in the external forum outside a judicial trial, ex-
cept for those given by the Roman Pontiff himself or by an Ecumeni-
cal Council.""' Due to their status as proper laws, neither general
decrees nor general executory decrees may be the object of the con-
tentious-administrative process. In contrast, all single administrative
acts are impugnable with the exceptions2 of those issued by the Ro-
man Pontiff or an ecumenical council."1
On the basis of the foregoing discussion, the notion of admini-
stration in the 1983 Code seems to include three categories. First,
this notion is utilized in reference to the coordination of various ac-
tivities within a particular community in the church such as a dio-
cese, seminary, or parish." 3 Second, it also describes the steward-
ship exercised over the temporal goods of the church such as
investment, accounting and bookkeeping, and various other financial
transactions. 14 Neither of these two categories necessarily require
the exercise of executive power. Third, to issue or to execute a gen-
eral executive decree or instruction, single decree, precept, or rescript
constitutes an act of administration." 5 A necessary prerequisite to
such acts is the executive power of governance." 6 A subgroup of the
third category, the single administrative act, is the object of the con-
tentious-administrative process, which is the subject of this Arti-
cle." 7 Only when an administrator acts as a public official does the
108. See id. cc.418-430.

109. See id. c.540.
110. See id. c.1400, § 2.
111. Id. c.1732.
112. See id.
113. See id. c.259, § 1, cc.419-430, c.473, § 1, c.479, § 1, c.530, c.532,
c.540, § 1.
114. See id. cc.1254-1258, cc.1273-1289.
115. See id. c.29, cc.48-75.
116. Even in the case of mere execution, the executive power is at least the
source of the act. See Urrutia,AdministrativePower, supranote 84, at 260.
117. See Grocholewski, supranote 84, at 263-79; Moodie, supra note 100, at
57; Dino Staffa, De distinctione inter iurisdictionem ordinariamet adminis-
act become susceptible to administrative recourse." 8 Private acts of

an administrative official such as disposing personal income to pur-
chase a home or lending money do not constitute impugnable ad-
ministrative acts. 19
European civil law attempts to draw a sharp distinction between
such private acts of the administrator (actus adminstratoris) and
those public acts which produce some juridic effect upon a certain
person (actus adminsitrativus).120 The latter type of act is termed a
provvedimento in Italian civil law,' 2 ' and the concept seems helpful
to understand the meaning of an impugnable administrative act in the
canon law.' 22 Consistent with the concept, the impugnable adminis-
trative act has been described as: "(1) an act placed by an adminis-
trator as (2) an expression of the exercise of administrative authority
which 1(3)
23
by its authoritative action directly affects another's
rights.'
trativam in iure canonico, 65 PERIODICA 5, 10 (1976).

118. See Gordon, supra note 16, at 376; Grocholewski, supra note 84, at
259-60; Moodie, supra note 100, at 57; see also Reply of the Promoter of Jus-
tice (October 18, 1990), in ROMAN REPLIES AND CLSA ADVISORY OPINIONS
1991, at 35-38 (Kevin W. Vann & Lynn Jarrell, O.S.U., eds., 1991) (not all
acts that proceed from a person who possesses administrative power can be
said to be administrative acts; only those should be reckoned as administrative
acts which proceed either from administrative authority or from the exercise of
administrative power). This private opinion was apparently published without
permission. See Letter from the Apostolic Signatura, Protocol No. 23081/91
VAR, in ROMAN REPLIES AND CLSA ADVISORY OPINIONS 1992, at 3-5 (Kevin
W. Vann & Lynn Jarrell, O.S.U., eds., 1992).
119. See Dino Staffa, Supremus organismus Contentioso-Administrativusin
ecclesia, 67 PERIODICA 523, 528-31 (1978).
120. See NEDJATI & TRICE, supra note 2, at 74; GUNTER RAAB,
RECHTSSCHUrZ GEGENfJBER DER VERWALTUNG 287-89 (1978).
121. See Moodie, supra note 100, at 57-59.
122. For example, Grocholewski has adopted the term in referring to the
process of administrative recourse. See Zenon Grocholewski, La Parte resis-
tente nei processi contenzioso-amministrativipresso la Segnatura Apostolica,
in IUSTUS IUDEx 472-89 (Klaus Lfidicke et al. eds., 1990); see also PAOLO
MONETA, IL CONTROLLO GIURISDIZIONALE SUGLI ATTI DELL'AUTORITA
AMMINISTRATIVA NELL'ORDINAMENTO CANONICO 59-110 (1973).
123. Moodie, supra note 100, at 58.
November 2000] COMPARISON OFADMINISTRATIJE LAW 103
c. hierarchicalrecourseand local administrativetribunals

In the preparation of both the 1917 and 1983 Codes, the possi-
bility of local administrative tribunals was considered and re-
jected.124 As previously noted, the 1972 schema prepared by the
Pontifical Commission for the Revision of the Code of Canon Law
contained canons requiring the establishment of administrative tribu-
nals by Episcopal Conferences. 125 In a subsequent draft of the
schema which contained twenty-eight proposed canons on adminis-
trative procedure, the commission contemplated permitting the im-
plementation of administrative tribunals. 12 When the new Code of
Canon Law was promulgated,
27
the provisions for the administrative
tribunals were omitted.1
There are at least two significant reasons why the code sets forth
a system of hierarchical recourse rather than of local administrative
tribunals. First, the tribunals seem impractical since to provide the
resources in terms of adequately trained personnel to sustain such an 28
arrangement would simply be too taxing for most local churches.'
Additionally, and more importantly, it would be inconsistent with the
doctrine of hierarchical communion for the administrative tribunal to
judge the act of the bishop. The Roman Pontiff, not an inferior
124. For discussion of the 1917 proposal, see Ignacio Gordon, De tribunali-
bus administrativis,57 PERIODICA 602, 606-07 (1968), and Kevin Matthews,
The Development and Future of the Administrative Tribunal, 18 STtLDIA
CANONICA 1, 187 (1984).
125. See PoNTIIciA COMMIssiO CODICI IURIS CANONICI RECOGNOSCENDO,
SCHEMA CANONUM DE PROCEDURA ADMINISTRATIVA 14 (1972).
126. See PONTIFICIA COMMISSIO CODICI IURIS CANONICI RECOGNOSCENDO,
SCHEMA CODICIS IUIS CANONICI 372 (1980).
127. For reference to the administrative tribunals, see 1983 CODE c.149, § 2,
c.1400, § 2.
128. In preparation for the October 1981 meeting of the Commission for the
revision of the Code, the Secretariat responded to the proposal for administra-
tive tribunals by objecting that "oftentimes experienced personnel are lacking."
PONTIFICIA COMMISSIO CODICI IURIS CANONICI RECOGNOSCENDO, RELATIO
COMPLECTENS SYNTHESIM ANIMADVERSIONUM AB EM.MIS. ATQUE EXC.MIs.
PATRIBUS COMMISSIONIS AD ULTIMUM SCHEMA CODICIS IURIS CANONICI
EXHIBITARUM, CUM RESPONSIONIBUS A SECRETARIA ET CONSULTORIBUS
DATIS 340-41 (1981). This was troublesome for the proposed tribunals inso-
much as the matters before the tribunal would be sensitive and complex "re-
quiring a profound grasp of the law and ofjustice." Id.
LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 34:81
tribunal over which the bishop in fact exercises sacred power, pos-
sesses the authority to judge an act of the bishop. 29 Thus, the pro-
posal of the local administrative tribunals was rejected for practical
and doctrinal reasons. Finally, it is significant that Pope John Paul II
declined to implement local administrative tribunals. Respecting the
authority of local Ordinaries, the30 Supreme Legislator affirmed the
process of hierarchical recourse. 1
Given the reality of communio, there is a presumption that one
who exercises sacred power in the church does so "always observing
canonical equity and keeping in mind the salvation of souls, which in
the Church must always be the supreme law."' 3' These words per-
tain to an aspect of the administrative process, and it is perhaps no
coincidence that the Supreme Legislator chose them as the final
words of the new Code. The presumption of these ultimate words
helps to explain why Section I of Part V of Book VII in the Code af-
firms a system of hierarchical recourse, rather than one of adminis-
trative tribunals, in the juridic structure of the church.' 32 Since the
bishop is in hierarchical communion,133 he is presumed to act for the
good, and his single administrative decrees are not to be judged by a
lesser authority. Only the Roman Curia as the representative of the
34
Supreme Pontiff may judge the administrative acts of the bishop.1
129. It is interesting to note in this regard that a more recent proposal for
administrative tribunals by the Canon Law Society of America exempts the
administrative acts of the diocesan bishop. See PROTECTION OF RIGHTS OF
PERSONS IN THE CHURCH: REVISED REPORT OF THE CANON LAW SOCIETY OF
AMERICA § 1 (1991).
130. See 1983 CODE cc.1732-1739.
131. Id. c.1752.
132. See id. cc.1732-1739.
133. See id. c.336 (stating that hierarchical communion is the union of the
bishops throughout the world with the Pope as the Bishop of Rome).
134. Canon 1737 provides that one injured by an administrative decree has
recourse to the hierarchical superior of the one who issued the decree. See id.
c.1737. Since the bishops stand at the head of the hierarchical structure, only
the Supreme Pontiff has the authority, through the Roman Curiae, to judge the
bishops. See id. cc.331-335 (describing the supreme power of the Roman
Pontiff).
November 2000] COMPARISON OFADMNIS TRATIVE LAW 105
d. hierarchicalrecourseand the Dicasteriesof the Roman Curia

Certain of the Dicasteries of the Roman Curia, also known as
Congregations, exercise competence over petitions of remedy
brought by individuals who allege some injury as a result of an act of
administrative power.135 These Dicasteries include the Congregation
for the Doctrine of the Faith, Congregation for Oriental churches,
Congregation for Divine Worship and Discipline of the Sacraments,
Congregation for the Causes of the Saints, Congregation for Bishops,
Congregation for the Evangelization of Peoples, Congregation for
Clergy, Congregation for Institutes of Consecrated Life and Societies
of Apostolic Life, and the Congregation for Seminaries and Educa-
tional Institutions. 136 The 1988 Apostolic Constitution Pastor Bonus
specifies the particular competency of a given Congregation over a
recourse from the administrative decree of a bishop or supreme mod-
erator of an institute of consecrated life.1 37 As they represent the
Roman Pontiff, the Dicasteries constitute the final level in the system
of hierarchical recourse. 138 After the appropriate Dicastery has ren-
dered a final decision in the case, contentious-administrative
39
re-
course may be brought to the Apostolic Signatura.1
2. Ecclesiastical administrative process

Canons 1732 through 1739 prescribe the procedure to be fol-
lowed in hierarchical recourse. 40 From a technical perspective, re-
135. See supra note 70.

136. See PASTORBONUS arts. 48-116.
137. See id. arts. 48, 56, 62, 71, 75, 83, 85, 93, 99, 105, 115 (describing the
competency of the nine Congregations).
138. See 1983 CODE c.1442; see also PASTOR BONUS arts. 121, 123 (stating
that the Apostolic Signatura is the Supreme Tribunal and has the power to con-
sider administrative acts issued or approved by the Dicasteries); supra note 70
and accompanying text (defining Dicasteries).
139. See 1983 CODE c.1445.
140. See id. cc.1732-1739. The 1983 Code includes a special procedure for
the removal and transfer of pastors in Canons 1740-1752. See id. cc.1740-
1752. For a discussion of the special interests of pastors based on the schema
for the new Code, see Giuseppe Lobina, De processibus administrativae in-
dolls in dimissione religiosorum et in amotione parochorum, 67 PERIODICA
681 (1978). See also THOMAs J. PAPROCKI, VINDICATION AND DEFENSE OF
THE RIGHTS OF THE CHRISTIAN FAITHFUL THROUGH ADMINISTRATIVE
course against a single administrative act follows the process of hier-

archical recourse up to, and including, the level of the Dicasteries of
the Roman Curia, while the contentious-administrative process
commences with the review of the Second Section. 14 1 Because the
competency of the Signatura concerns violations of law, a violation
in the process of hierarchical recourse would constitute appropriate
matter for the Signatura's consideration and judgment. The process
of hierarchical recourse may be divided into two phases. 42 Each
phase will be discussed in turn following a preface on the church's
preference for conciliatory processes.
a. avoiding contentiousprocess through conciliation

Section 1 of Canon 1733 exhorts parties involved in a conten-
tious-administrative matter to reconcile differences prior to the ini-
tiation of formal recourse against the decree. 143 The exhortation has
roots in the sacred Scripture, and it reflects the commitment to com-
munio in the church, which is to be fostered among and by all of the
Christian faithful. 44 Recognizing the costs to individuals and to the
Church that often accompany the process of hierarchical recourse,
the canon suggests mediation, study of the issues, or any other suit-
able means through which the controversy might be eschewed or re-
solved.145 This is not to suggest, however, that anything but an
RECOURSE IN THE LOCAL CHURCH 86 (1991) (discussing the various powers of
the hierarchic superior regarding decrees).
141. See infra pp. 133-133.
142. The author of this Article is indebted to Fr. Frans Daneels, O.Praem.,
Promoter of Justice at the Apostolic Signatura, for explaining this distinction in
his lectures at the Gregorian University in Rome.
143. See 1983 CODE c.1733, § 1.
144. See Matthew 18:15-17; see also GHIRLANDA, supra note 28, at 455-56
& n.621 (stating that canon law reflects the theological mystery of commun-
ion); Francesco Coccopalmerio, lustitia administrativaquoad iurafidelium et
quoad communionem ecclesialem, 67 PERIODICA 663, 670 (1978) (stating that
administrative justice in canon law should reflect the communion of all
Christ's faithful); Zenon Grocholewski, Giustizia amministrativa nel nuovo
Codice di Diritto Canonico, 63 ANGELICUM 333, 349 (1986) (stating that ad-
ministrative justice in the 1983 Code finds its theological roots in Vatican II's
theology of communio).
145. In this regard, see also 1983 CODE c.1446, which urges avoidance of
contentious trials, and id. cc.1713-1716, which describe the means of avoiding
ordinary judicial trial through alternate means of dispute resolution, such as
conciliation and arbitration. This is consistent with a trend in civil law that fa-
November 2000] COMPARISON OFADAflNISTRATIyE LAW 107
equitable solution be accepted by one of the parties. To this end, the
canon continues by encouraging bishops to establish
46
either national
or diocesan offices for conciliation of disputes.
In reality, not all controversies are resolvable through alternate
informal means of dispute resolution. Zenon Grocholewski has ob-
served that sometimes structures of mediation and arbitration prove
insufficient for the protection of rights.147 In such cases, justice is
best served through the initiation of formal recourse48
by a party alleg-
edly aggrieved by an administrative act or decree.1
b. phase one
i. remonstratio
While the law urges parties to settle disputes without formal re-
course, Canon 1734, Section 1, mandates that prior to making re-
course, the petitioner must seek revocation or emendation of the de-
cree from its author. 49 The section further exacts that the authority,
who receives the written request for revocation or emendation of his
own decree, must assume that the petitioner also seeks suspension of
effects of the decree. 5 ° Thus, the law seeks to protect the petitioner
who inadvertently omits such a specific request. Section 2 of the
vors alternate means of dispute resolution as preferable to formal judicial pro-

ceedings. See, e.g., STEPHEN B. GOLDBERG Er AL., DISPUTE RESOLUTION,
NEGOTIATION, MEDIATION, AND OTHER PROCESSES 6-13, 286-404, 567-74
(3d ed. 1999) (discussing the increased use of voluntary and mandatory alter-
nate means of resolution and the future in general).
146. See 1983 CODE c.1733, § 2; see also Grocholewski, supra note 144, at
342-45 (stating that bishops should foster structures of reconciliation as an al-
ternative to administrative recourse).
147. See Grocholewski, supranote 3, at 153, 156.
148. An interesting example of a Dicastery's efforts to resolve an adminis-
trative controversy through mediation occurred in 1977 in the Diocese of Ar-
lington, Virginia. In a parish of that diocese, a dispute arose between the new
pastor and the parish council when the pastor dissolved the council. Attempts
at reconciliation at the local level failed, and the parishioners brought a re-
course to the Congregation for Clergy. Before accepting the recourse, the Di-
castery requested that an American Bishop be appointed as a mediator. When
the mediation proved fruitful, the formal recourse ,was rendered moot. See
Thomas Welsh, Good Shepherd Parish:Reconciliation Effort, 7 ORIGINs 504,
504-05 (1978).
149. See 1983 CODE c.1734, § 1.
150. See id.
same Canon requires that the request for revocation or emendation be

made within ten available days from the reception of legal notice of
the decree.151
Section 3 of Canon 1734 lists three circumstances in which it is
not necessary for a petitioner to request revocation or emendation
from the author of the decree.152 First, the petitioner may approach
the bishop directly where the challenged decree was issued by one of
his immediate subordinates such as the Vicar General, the Judicial
Vicar, or a pastor. 53 Second, the petitioner need not make the re-
quest for revocation or emendation of a decree issued by a public
authority during the process of hierarchical recourse, unless the
authority was the bishop. 15 4 For example, in the case in which the
Congregation for Catholic Education issues a decree which confirms
the decree of a bishop to close a certain parochial school, the peti-
tioner need not request the Congregation to revoke or modify its de-
cree before appealing to the Apostolic Signatura. However, if the
bishop issued a decree confirming the decision of the pastor to close
the school, then the request must be made to the bishop before pro-
ceeding. Third, it would be unnecessary to make the request when
recourse is proposed in accord with Canons 57 and 1735.'
Pursuant to Canon 57, a negative response is presumed to a pe-
tition when the superior to whom the petition was addressed fails to
act within the time period prescribed by law.' 56 Likewise, Canon
1735 fixes the time limit of thirty days in which the superior, who re-
ceives the request, must respond.157 The Canon stipulates that a su-
perior's silence to a request for revocation or modification of a de-
cree amounts to a negative response. Neither in the case of the
presumption of a negative response from silence, nor in the case of
an expressed refusal of the request, must a further request for revo-
cation or emendation be made since this would tend to immobilize
the process in a multiplication of requests.
151. See id. § 2.

152. See id. § 3.
153. See id.
154. See id.
155. See id.
156. See id. c.57, § 2.
157. See id. c.1735.
November 2000] COMPARISON OFADMNISTRATIVE LAW 109
ii. suspending the effects of the decree

Canon 1736 deals with several issues about the suspension of
the challenged decree. First, the petition for revocation or modifica-
tion of a decree suspends the effects in all those cases where hierar-
chical recourse suspends the effects.1 5s For example, since hierar-
chical recourse from a decree that dismisses a member from an
institute of consecrated life suspends the effect of the decree, a peti-
tion for revocation or modification by the member to the superior
who issued the decree likewise has suspensive effect.15 9 Second,
even when it is not specifically expressed in the law, the author of
the decree may voluntarily suspend it while a petitioner's request for
revocation or modification is under consideration.1 60 Moreover, if
the author of the decree fails to suspend the effects within ten days of
the receipt of the petitioner's request, the petitioner may seek sus-
pension from the next hierarchical superior, who can grant suspen-
sion for grave reasons and with concern for the salvation of souls.' 6'
When suspension is granted by the author of the decree or by the
next hierarchical superior, it remains in effect until recourse is made
to the next hierarchical superior who must then decide whether to
confirm or revoke the suspension. 62 Finally, if proper recourse to
the hierarchical superior is not made within the statute of limitations,
the suspension thereupon automatically ceases.' 63
c. phase to: hierarchicalrecourse proper
When some equitable resolution of a dispute between a private
individual and a church official over the administrative act of the
latter cannot ultimately be found, then the individual may invoke the
158. See id. c.1736, § 1.

159. See id. c.700, c.729, c.746; see also id. c.1354 (providing authority for
one who hands down penalty to also remit that penalty); id. c.1747, § 3 (pro-
hibiting bishop from appointing another parish priest when recourse against a
decree of removal is pending, but requiring that the parochial administrator fill
in until the situation is resolved); id. c.1752 (stating the fundamental proposi-
tion that all disputes must be resolved with canonical equity).
160. See id. c.1734, § 1.
161. See id. c.1736, § 2.
162. See id. § 3.
163. See id. § 4.
LOYOLA OFLOS ANGELES LA WRVIEW [Vol. 34:81
process of hierarchical recourse.'64 In accordance with Section 2 of

Canon 1737, the petitioner must propose hierarchical recourse within
a peremptory period of fifteen available days from the day on which
actual notice of the challenged decree was received by the peti-
tioner. 165 Technically, if the statute of limitations is exhausted prior
to the filing of a written petition for hierarchical recourse, the case
may be refused.166 Nonetheless, in the interest of justice and equity,
a hierarchical superior may grant a hearing even when the statute has
167
been tolled.
Recognizing that the process of hierarchical recourse is some-
times complex, Canon 1738 permits parties to be represented by
counsel.168 Indeed, an advocate must be appointed when a petitioner
lacks one and the hierarchical superior deems it necessary based on
the nature of the case. 169 The appointment of counsel, of course,
does not excuse the0 petitioner from being available for questions
7
during the process.1
The hierarchical superior enjoys wide discretion in deciding a
case. 17 1 Canon 1739 permits the hierarchical superior to confirm,
nullify, rescind, revoke, subrogate, or obrogate the challenged de-
cree. 72 Canon 1737, Section 1, recognizes the right of one who
164. For an analysis of several cases of administrative recourse to the Di-

casteries of the Roman Curia from dioceses in the United States, see James H.
Provost, Recent Experiences of Administrative Recourse to the Apostolic See,
46 JURIST 142, 145-55 (1986).
165. See 1983 CODE c.1737, § 2.
166. See id. c.1736, § 4.
167. Although the hierarchical superior may grant the favor of a hearing
even though the recourse was brought after the statute of limitations had ex-
pired, it would not seem, if the superior did not respond in any way, that his
silence could be construed as a negative response for the purpose of having re-
course to the next highest superior. To the contrary, the provision of Canon
57, Section 2, of the 1983 Code would not seem to take effect because the first
section of this canon describes the case in which a petition or recourse has
been "lawfully presented." See id. c.57, § 1. It would seem that the same rea-
soning would apply in the case of Canon 1435 in the 1983 Code in regard to
the required remonstratio. See id. c.1734, § 1 (suspending the decree once re-
lief from it has been requested from its author).
168. See id. c.1738.
169. See id.
170. See id.
171. See Moodie, supra note 100, at 48-49.
172. Confirmation of the decree, of course, upholds the decision of the lower
contends to be injured by a decree to bring recourse to the hierarchi-
cal superior for any just cause.' 73 There are three significant ele-
ments to this provision. First, an individual who asserts some injury
from a decree may bring hierarchical recourse. 7 4 Second, the per-
missible reasons for such recourse are wide; recourse may be brought
for any "just reason."' 75 Third, the recourse is directed to the hierar-
chical superior of the one who issued the decree.' 7 6 It may be filed
either with the hierarchical superior or with the author of the decree
who then transmits it to the superior. The same canon permits that in
cases in which recourse does not automatically suspend the effects of
the challenged decree, the hierarchical superior can order such sus-
77
pension.'
For example, a pastor who has been removed from his office by
the bishop would be a competent individual to bring hierarchical re-
course against the decision of the ecclesiastical authority. The pastor
might assert just reason on the ground that, in removing him from of-
fice, the bishop did not act in accordance with Canons 1740 through
1747, which govern the removal of pastors.17 8 Specifically, the pas-
tor might allege that the bishop, before taking action, failed to follow
the prescribed procedure of Canon 1742. Pursuant to that canon, the
bishop must discuss the matter with two other pastors from a perma-
nent group, specifically selected for this purpose, prior to removing
the pastor. 79 The recourse would be directed to the hierarchical
authority.
Declarationofnullity means that the decree itself is invalid due to some
violation of law or technical defect.
Recission and revocation do not address the validity of the decree, but
simply withdraw it and make it unenforceable.
Amendment of the decree leaves the original decree in force, but with
modifications. Subrogation replaces the original decree with a new one.
Obrogation abolishes or abrogates the original decree by issuing a new
one contrary to the former one.
PAPROCKI, supra note 140, at 86.
173. See 1983 CODE c.1737, § 1.
174. See id.
175. Id.
176. See id.
177. See id. § 3.
178. See id. cc.1740-1747.
179. See id. c.1742, § 1. The members of this permanent group are selected
by the presbyteral council froma group proposed by the bishop. See id.
LOYOLA OFLOS ANGELES LA WREVIEW [V'ol. 34:81
superior of the bishop, in this case the Congregation for Clergy as the
appropriate Dicastery of the Roman Curia. The pastor could file the
petition either with the Dicastery, or with the bishop for transmis-
sion. The law provides that recourse against such action does not
automatically carry suspensive effect, although the bishop would be
barred from appointing a8 0new pastor until his decree has been con-
firmed by the Dicastery.1
B. American Administrative Law
1. Constitutional background: the separation of powers

The investigation of the theoretical foundations of American
administrative justice begins with the fundamental legal document-
the United States Constitution. At the outset, two general character-
istics of the Constitution seem noteworthy. First, the Constitution is
supreme in relation to any other law or government policy. 181 Sec-
ond, it creates a national government by the federation of each of the
fifty states which have their own constitutions and statutes. Suffice it
to say that the relationship between the federal government and the
states has been, and continues to be, one of the central issues of
American political and legal experience.18 2 Although each of the
180. See id. c.1747, § 3.

181. Clause 2 of Article VI of the Constitution provides that "[t]his Consti-
tution ... shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding." U.S. CoNsT. art. VI, cl. 2.
182. For a description of how the federal state powers issue affected the
drafting of the federal Constitution by the First Congress, see HistoricalNote
on the Formation of the Constitution, in THE CONSTITUTION OF THE UNITED
STATES OF AMERICA: ANALYSIS AND INTERPRETATION XXXV-XLI (Lester S.
Jayson et al. eds., 1973) [hereinafter HistoricalNote]. Section 9 of Article I of
the Constitution is devoted to the restraints upon the national government. It
contains eight clauses restricting or prohibiting legislation affecting areas such
as the suspension of the writ of habeas corpus, the enactment of bills of attain-
der or ex post facto laws, and the granting of preference to the ports of one
state over those of another. See U.S. CONsT. art. I, § 9; see also, e.g., Morgan
v. Louisiana, 118 U.S. 455, 467 (1886) (holding that restraints of Section 9 of
Article I were not applicable to a Louisiana statute that imposed a quarantine
tax); Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) (holding that federal
courts lack jurisdiction to decide whether a state may take private property for
public use). Section 10 of Article I enumerates the powers denied to the States
states has its own system of administrative justice, the subject at

hand concerns federal administrative justice. It is characteristic of
modern states to distinguish three broad powers of governance: leg-
islative, executive, and judicial 8 3 The analytical utility of the dis-
tinction can be detected in the political theory of Aristotle.' 84 The
theory's modem expression appears in the works of John Locke and
Montesquieu. ss The political disciples of these philosophers, par-
ticularly those who framed the United States Constitution, adopted
and refined the notion to lay the cornerstone of constitutional gov-
ernment.186 Although it is manifested in a variety of forms, the
quintessence of the modem theory is to safeguard against excessive
such as the inability to enter treaties with foreign nations, the minting of
money, and the enactment of bills of attainder and ex post facto laws. See U.S.
CoNsT. art. I, § 10; see also, e.g., Julliard v. Greenman (Legal Tender Case),
110 U.S. 421, 446-47 (1884) (upholding congressional authority to make U.S.
Treasury notes a legal tender for payment of private debts); Cummings v. Mis-
souri, 71 U.S. (4 Wall.) 277, 323-25 (1866) (invalidating a portion of the Mis-
souri State Constitution as a bill of attainder and an ex post facto law). See
generally TRIBE, supra note 7, at 401-545 (setting forth examples of judicial
review of state regulations and analyzing the conflicts between state and fed-
eral laws). Regarding federal judicial review of state administrative matters,
see Younger v. Harris,401 U.S. 37 (1971), holding that federal courts must re-
frain from adjudicating requests for injunctive relief arising from an ongoing
state criminal investigation, and Ohio Civil Rights Commission v. Da'ton
Christian School, Inc., 477 U.S. 619 (1986), holding that the Younger absten-
tion rule also applies to state administrative proceedings.
183. See generallyM.J.C. VILE, CoNsTITUTIONALIsM AND THE SEPARATION
OF POWERS (2d ed. 1998) (analyzing three centuries of Western constitutional
thought and recognizing the balancing of governmental power as the mecha-
nism for democracy). See also NEDJATI & TRICE, supra note 2, at 14-15 (dis-
cussing the doctrine of separation of powers as a system of checks and bal-
ances so that power is distributed among different bodies to create a "real,
living democracy").
184. Aristotle delineates specific roles for the king and generals, the legisla-
tive council, and the courts of law. See ARISTOTLE, Constitution of Athens, in
THE COIPLETE WORKS OF ARISTOTLE 2341, 2367 (Jonathan Barnes ed.,
1984).
185. See JOHN LocKE, An Essay Concerningthe True Original,Ertent, and
End of Civil Government, in TWO TREATISES OF GOVERNMENT 267, 364-65
(Peter Laslett ed., Cambridge Univ. Press 1988) (1690); MONTESQUIEU, DE
L'ESPIRIT DES LOIX 63-77 (1955).
186. See generally STRAUSS, supra note 80, at 12-18 (discussing the organi-
zation of the Constitution around the notion of separation of powers).
powers in any one branch or office of government.' 87 The applied

theory attempts to establish a system of checks and balances so that
one who makes a rule is not at the same time charged with imple-
menting it, nor is the legislator or executive commissioned to judge
the rule's application to particular circumstances. 188
Even if one accepts the division of governmental power into
three main functions, it does not follow that the exercise of the func-
tions must be rigidly segregated.' 89 In many countries that subscribe
to the separation of powers, rulemaking authority subsists in all three
branches. 190 The executive branch may commonly develop rules for
the administration of government entitlements such as social security
pensions, veterans' benefits, and health care insurance. At the same
time, the interpretations and applications of the rules by the judicial
branch may have binding force of law on like cases. Given the com-
plexities of modem government, the separation of powers is not ab-
solute.
The Framers of the Constitution applied the tripartite separation
by creating three distinct, yet interrelated, branches of government.
The first three Articles of the Constitution confer the legislative, ex-
ecutive, and judicial powers on the three distinct structures.1 91 Arti-
cle I fixes the legislative power of the federal government dividing it
between a bicameral Congress: the Senate and the House of Repre-
sentatives.192 Article II authorizes the election of a chief executive,
187. See generally id. at 14 (explaining that the separation of powers doc-
trine invokes fundamental principles of fairness and justice); HARRY STREET &
RODNEY BRAZIER, CONSTITUTIONAL AND ADMINISTRATIVE LAW 31 (5th ed.
1985) (noting that French philosopher Montesquieu and his followers advo-
cated tripartite systems to protect individual liberties); TRIBE, supra note 7, at
18 (discussing separation of powers as a politial theory for controlling gov-
ernment against a feared tendency to take excessive power).
188. See STREET & BRAZIER, supra note 187, at 31.
189. See id. at31-32.
190. See id. at 32-33; STRAUSS, supra note 80, at 504-07.
191. See U.S. CONST. arts. I, II,III.
192. Section 1 of Article I establishes the Congress as the national legislative
body, which possesses only those limited powers granted to it by the Constitu-
tion. See U.S. CONST. art. I, § 1. Section 8 of the same Article lists the princi-
pal powers of Congress as, inter alia, to levy taxes; to make expenditures for
national defense and the general welfare; to regulate interstate and foreign
commerce; to borrow money; to coin and regulate money and punish counter-
feiting; to establish national rules for matters concerning bankruptcy; to estab-
the president, who exercises vast and somewhat undefined power.'93

Article I establishes the United States Supreme Court as the ulti-
mate judicial power.19 4 A system of "checks and balances" serves as
lish a Post Office; to construct highways; to set a policy for immigration; to

declare war, and to govern all federal territories, including but not limited to
the District of Columbia. See id. § 8. In addition to listing the chief powers of
Congress, Section 8 further empowers Congress to "make all Laws which shall
be necessary and proper" to the operation of the federal government Id. Thus,
the Constitution grants a wide implied power to Congress to do what is "neces-
sary and proper" so that the government functions. Id.; see also TRIBE, supra
note 7, at 224-25 (discussing Congress's exercise of Article I, Section 8 pow-
ers and its effect on the other branches of government).
193. Section 1 of Article II simply states that "[tlhe executive Power shall be
vested in a President of the United States of America." U.S. CoNsT. art. II, §
1. In Myers v. United States, 272 U.S. 52, 118 (1926), the Supreme Court, ac-
cepting a proposition originally proffered by Alexander Hamilton, held that the
president, unlike the Congress, could exercise power from sources not enumer-
ated in the Constitution, so long as the Constitution did not expressly forbid it.
The president's power over foreign affairs seems settled. See, e.g., United
States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936) (expressing that the
president enjoys plenary power over the conduct of foreign affairs). Although
the president does not exclusively dominate domestic affairs, he is without
doubt a powerful chief executive officer with broad powers to execute the laws
of the land. Compare In re Debs, 158 U.S. 564, 599 (1895) (holding that
President Cleveland could order the trains to move during the strike of 1895 in
order to insure mail delivery), with Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 587 (1952) (holding that President Truman acted unconstitution-
ally when he seized the steel mills to avert a strike during the Korean War). It
falls to Congress to pass legislation that establishes administrative agencies.
The president, however, may propose legislation and enjoys a limited veto
power over acts passed by Congress. Moreover, as the chief executive officer,
the president has the ultimate authority for the administration of most domestic
programs. Further, he appoints and removes many heads of administrative
agencies. See STRAUSS, supra note 80, at 161-64.
194. Section 2 of Article III of the Constitution requires that the federal
courts exercise the judicial power only to resolve "Cases" and "Controversies"
that arise under the Constitution, laws, and treaties of the United States. U.S.
CONST. art. II,§ 2; see, e.g., Muskrat v. United States, 219 U.S. 346, 356
(1911) (holding that Congress cannot grant jurisdiction to a federal court to de-
cide a matter that fails to constitute an actual "case or controversy"); Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264 (1821) (illustrating that the Supreme Court
exercises appellate jurisdiction over a state court determination of a treaty,
statute, or the Constitution of the United States); Young v. New York City
Transit Auth., 903 F.2d 146, 162 (2d Cir. 1990) (finding that in challenging a
law which banned panhandling, plaintiffs failed to allege an actual case or
controversy since no one had been arrested pursuant to the law). Perhaps the
most important power of the federal courts is the power to interpret the Con-
LOYOLA OFLOS ANGELES LAWRE VIEW [Vol. 34:81
an appurtenant to the theory of the separation of powers. Although

the two houses of Congress pass legislation, the president is able to
veto a law. 195 A veto may be overturned by a two-thirds vote of both
houses of Congress. 196 In overseeing the various executive depart-
ments of the government, the president depends upon Congress for
adequate funding.' 97 If the president acts in a seriously illegal man-
ner, he or she is susceptible to impeachment and trial by the legisla-
tive branch of the government. 19 Among the powers of the chief
executive is the appointment of federal judges, including the Justices
of the Supreme Court, but these appointments must be approved by
the Senate. 199 Once the legislative branch assents to a judicial ap-
pointment, the judge sits for a life term so as not to
200
be susceptible to
political influence in rendering decisions on cases.
Such a power to appoint is still subject to review by the courts.
In Mistretta v. United States,20 1 the Supreme Court considered
whether Congress delegated excessive power when it established the
United States Sentencing Commission with power to promulgate
binding sentencing guidelines for all categories of federal of-
fenses702 The structure of the commission was somewhat novel in
stitution and to invalidate any law that fails to comport with it. See, e.g., Mar-
bury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Calder v. Bull, 3 U.S. (3 Dall.)
386 (1798). As to the organization of the federal judiciary, the Constitution is
almost completely silent. The structure and size of the federal courts, as well
as their jurisdiction, is left to Congress. See HistoricalNote, supra note 182, at
583-93, 629-761. For the classical treatment on the drafting of the Constitu-
tion and the judicial power, see CHARLES A. BEARD, THE SUPREME COURT
AND THE CONSTITUTION (1912).
195. See U.S. CONST. art I, § 7, cl. 2.
196. See id. § 7, cls. 2-3.
197. See id. §§ 8-9. At least since 1921, the president has had the primary
responsibility for preparing the national budget, and, consequently, the chief
executive officer wields a great amount of power in the programming of fed-
eral expenditures. See TRIBE, supra note 7, at 194.
198. See U.S. CONST. art. II, § 4 (providing that "[t]he President, Vice Presi-
dent and all civil Officers of the United States, shall be removed from Office
on Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors").
199. See id. § 2, cl. 2.
200. See id. art III, § 1.
201. 488 U.S. 361 (1989).
202. See id.; see also Morrison v. Olson, 487 U.S. 654 (1988) (upholding a
statute which empowered the judicial branch to appoint a special prosecutor to
investigate the executive branch); Amalgamated Meat Cutters v. Connally, 337
November 2000] COMPARISONOFAD.MINITRATIYELAW 117
that, pursuant to the statute by which it was created, it referred to the

commission "as an independent commission in the judicial
branch.' 20 3 In upholding the unusual arrangement, the Court rea-
soned that the statute did not unduly strengthen the judicial branch
since the federal judges who comprise the commission reflect the ac- 20 4
cumulated wisdom and experience in creating policy on sentences.
Contrary to the reasoning of the Mistretta majority, Justice Scalia ar-
gued in dissent that the delegation in question so commingled sepa-
rate government functions as to create "a new Branch altogether, a
sort ofjunior varsity Congress. 205 To make the legislation constitu-
tional would require repudiating the formalistic distinctions of the
separation of powers as envisioned by the architects of the Constitu-
tion. 20 6 While this may seem convenient in the short term, as it re-
lieves Congress of the duty of passing legislation to establish sen-
tences, over the long term it runs the risk of seriously jeopardizing
the system of checks and balances and its underlying rationale that
too much power 2ought not be concentrated in one branch of the fed-
eral government. 01
2. Administrative state
Even at the time of the framing of the Constitution, it was evi-
dent that the national government would need certain subsidiary
agencies to administer specific programs.20 8 Early drafts of the Con-
stitution specified a number of departments each to exercise a par-
ticular area of competence. 0 9 Instead, the Framers ultimately
F. Supp. 737 (D.D.C. 1971) (upholding a broad grant of power to the president
to set limits on wages and prices).
203. Sentencing Reform Act of 1984,28 U.S.C. § 991(a) (1994).
204. See Mistretta,488 U.S. at 395-97.
205. Id. at 427 (Scalia, J., dissenting); see also Morrison, 487 U.S. at 733-34
(Scalia, J., dissenting) (stating that the president's need for control and discre-
tion in such matters is central to the proper functioning of the executive
branch).
206. See Mistretta,488 U.S. at 413-27.
207. See id. at 427.
208. See FINAL REPORT OF ATTORNEY GENERAL'S COMMITTEE ON
ADMINISTRATIVE PROCEDURE, S. REP. No. 77-2, at 7-8 (1941).
209. See id. at 8; see also LEONARD DUPRE WHITE, THE FEDERALiSTS: A
STUDY IN ADMINISTRATIVE HISTORY 10 (1948) (discussing President Wash-
ington's management of problems among different departments).
decided to emphasize a unitary presidency with full executive

power.210 At the same time, the Framers invested the Congress with
significant power to shape the national government. 21' The first
Congress promptly established Departments of State, Treasury, War
and Navy, and Justice to be headed by individuals appointed by the
president with congressional approval. 212 While the general charac-
teristics are set forth in the Constitution, the drafters omitted to iden-
tify the institutions that administer the particular programs. Declin-
ing to adopt a blueprint specifying cabinet departments in the
constitutional text, the drafters rather empowered Congress to outline 213
the shape of the government by any "necessary and proper" law.
The separation of powers constitutes the principal constraint on Con-
gress's judgment as to which administrative agencies are necessary
and proper to the varied work of the federal government. Essen-
tially, the Congress passes legislation that creates and funds the vari-
ous departments of the federal bureaucracy. By his or her appoint-
ments and broad policies, the president oversees and directs the
function of each administrative agency. The federal courts assure
that each agency administrates its particular area of competency in
conformity with the provisions of the Constitution and other federal
law. Any single agency then is in some respect subordinate to each
of the three main branches of the government.
Since Franklin Roosevelt's "New Deal," the number, size, and
authority of American administrative agencies has increased in ways
in which the Framers of the Constitution could not have envisioned.
Indeed, the administrative agencies, so often referred to by initials
rather than their full titles, are often said to constitute a veritable al-
phabet soup. To start, there are the major cabinet departments of the
executive branch of the government. Presently there are thirteen
such departments: Agriculture, Commerce, Defense, Education, En-
ergy, Health and Human Services, Housing and Urban Development,
Interior, Justice, Labor, Transportation, Treasury, and State.21 4 Each
210. See JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES 546-58 (1833).
211. See id. at 329-488.
212. See S. REP. No. 77-2, at 8.
213. U.S. CONST. art. I, § 8, cl. 18.
214. See STRAUSS, supra note 80, at 87.
of these enormous administrative entities is headed by a secretary

appointed by the president. 215 Under each of the departments are de-
partmental bureaus. For example, the Animal and Plant Health In-
spection Service and the Forest Service both fall under the jurisdic-
tion of the Department of Agriculture; the Food and Drug
Administration and the Social Security Administration answer to
Health and Human Services; and the Customs Service and the Inter-
nal Revenue Service are offshoots of the Treasury Department. The
departmental bureaus tend to be apolitical in the sense that they are
generally staffed and operated by nonpolitical appointees.2 16
Occasionally, Congress has created an administrative office
similar to a departmental bureau, but which answers directly to the
president rather than to a department. A prominent example is the
Environmental Protection Agency which is authorized to enforce the
major federal environmental legislation. Such agencies tend to be
highly technocratic, but because they report to the president, they
cannot be said to be free from political influence.217 When Congress
wishes to establish an administrative office at the greatest distance
from the president, it may employ the form of the independent regu-
latory agency. The major regulatory agencies include the Civil
Aeronautics Board, the National Labor Relations Board, the Federal
Maritime Commission, the Federal Communications Commission,
the Federal Elections Commission, the Equal Employment Opportu-
nity Commission, the Nuclear Regulatory Commission, and the Se-
curities and Exchange Commission. These commissions exhibit
quite complex and varying structures of internal government and
function. Generally, they operate under very broadly drawn statutes
that afford them enormous powers over their particular areas of ex-
pertise. 218 Administrative agency decision making may be divided
into three broad categories: (1) rulemaking, (2) formal adjudication,
and (3) informal processes. The first two models are set forth in the
APA.219 The APA does not address informal processes, however,
which represent the most frequent form of agency decision making.
215. See id.

216. See id. at 88-89.
217. See id. at 89-90.
218. See id. at 91-92.
219. 5 U.S.C. § 551 (1994).
3. Rules and rulemaking

The APA divides administrative action into two broad catego-
ries of adjudication and rulemaking. When more than several parties
are affected, the creation of a law through administrative rulemaking
is more desirable than the creation of a law through adjudication.22
The APA defines a rule as "the whole or part of an agency statement
of general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing the or-
,,221
ganization procedure or practice requirements of an agency ....
Rulemaking is analogous to legislation in that a rule is generally ap-
plied to all persons who fall within its provisions, and it is applied
prospectively, declaring a standard for future conduct. In contrast,
adjudication involves the resolution of issues which normally involve
factual situations which have occurred at some prior point in time.
Agency adjudication involves a party, allegedly injured by an ad- 222
ministrative action, who seeks a process for formulating "order."
An order applies immediately to named persons and to specific fac-
tual issues, although as with case law an order may have precedential
value. Administrative rulemaking is sometimes referred to as a
"quasi-legislative" function, while agency adjudication is said to in-
223
volve a "quasi-judicial" function.
All federal rules and regulations are promulgated in the Federal
Register, which is published every working day of the year. The
proper publication of administrative rules and regulations constitutes
constructive notice of their effect in law.224 The Code of Federal
Regulations is an annual, indexed compilation of all federal rules and
220. See STRAUSS, supra note 80, at 134.

221. 5 U.S.C. § 551(4). The APA defines "rulemaking" as an "agency proc-
ess for formulating, amending, or repealing a rule." Id. § 551(5).
222. An "order," according to the APA, is "the whole or a part of a final dis-
position, whether affirmative, negative, injunctive, or declaratory in form, of
an agency in a matter other than rulemaking but including licensing." Id. §
551(6). "Adjudication" is simply defined as an "agency process for the for-
mulation of an order." Id. §551(7).
223. See Mistretta, 488 U.S. at 410 n.33 (citing Humphrey's Executor v.
United States, 295 U.S. 602, 629 (1935)).
224. See, e.g., Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947)
(finding that publication of a rule in the Federal Register has force of law and
constitutes constructive notice).
November 2000] COMPARISON OFADMNISTRATI YE LAW 121
regulations promulgated by administrative agencies. Administrative

rules may be divided into four types: substantive, procedural, inter-
pretative, and housekeeping. 225 Substantive rules are the most sig-
nificant of the four types since they identify appropriate standards of
future conduct, have "the force and effect of law," and are "rooted in
a grant of power by the Congress. 2 26 In the promulgation of sub-
stantive rules, an administrative agency, in effect, exercises legisla-
tive power. The power of the agencies is not without limitation,
however.
A challenge to the Secretary of the Interior's exercise of such
power was brought in the case of In re PernanentSuiface Mining
Regulation Litigation.227 In this case, various interested persons filed
suit in the circuit court arguing that the general grant of rulemaking
authority contained in the Surface Mining Act did not include a grant
to the secretary to issue substantive laws.228 To the contrary, the ap-
peals court held that administrative agencies do possess general
rulemaking authority. 229 Moreover, the court stated a preference for
rulemaking over adjudication since rulemaking is a more efficient
and effective means of regulation than case by case adjudication. 230
Thus, rules which are properly promulgated and within the scope of
authority of the administrative agency have the force and effect of
law. 231 The principle that a properly promulgated rule has the same
effect as a statute applies not only to substantive rules but to proce-
dural rules as well. 232 Procedural rules identify the procedural steps
that an agency must follow in the exercise of its rulemaking and ad-
judicatory functions . In contrast, interpretative rules clarify or ex-
plain existing law rather than create new law. Standing alone, inter-
pretive rules do not have the force and effect of law. Finally,
225. See 44 U.S.C. § 1505 (1994).

226. Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979).
227. 653 F.2d 514 (D.C. Cir. 1981).
228. See id.at516, 523.
229. See id. at 524, 527.
230. See id. at 525.
231. See id. at 524-25.
232. See id.
233. See Reuters Ltd. v. FCC, 781 F.2d 946, 951 (D.C. Cir. 1986) (holding
that an agency must follow its own procedural rules, and it may not deviate
from them in order to achieve what it perceives to be justice).
housekeeping rules deal with relatively minor executive-type ad-

ministrative matters.
Section 553 of the APA sets forth the procedural obligations
which must be observed in the rulemaking process. 234 Essentially,
this involves a notice-and-comment process. Notice of proposed
rules must be published in the FederalRegister, and it must contain
certain information as to the nature and substance of the proposal as
well as the proper manner for public comment. 235 The comment
provision aims at affording the opportunity for public participation
2 36
when a rule "is likely to have a substantial impact on the public."
The basic rulemaking procedure prescribed by section 553 is referred
to as "informal rulemaking." Subsequent to publication of the notice
of rulemaking, the agency must "give interested persons an opportu-
nity to participate through submission of written [comments con-
taining] data, views, or arguments., 237 The administrative agency is
not required to hold oral hearings under this section. 238 When the
agency has considered the public comments, it must issue, along with
the promulgated rule, a statement of the basis and purpose of the
rule.23 9 Sometimes language in a statute requires "formal
234. See 5 U.S.C. § 553 (1994).

235. General notice of proposed rule making shall be published in the
Federal Register, unless persons subject thereto are named and either
personally served or otherwise have actual notice thereof in accordance
with law. The notice shall include-
(1) a statement of the time, place, and nature of public rule making
proceedings;
(2) reference to the legal authority under which the rule is proposed;
and
(3) either the terms or substance of the proposed rule or a description of
the subjects and issues involved.
Id. § 553(b).
236. 1 C.F.R. §305.76-5 (1993).
237. 5 U.S.C. § 553(c).
238. See id.
239. See id.; see also Auto. Parts & Accessories Ass'n v. Boyd, 407 F.2d
330, 338 (D.C. Cir. 1968) (holding that the function of statement of basis and
purpose in informal rulemaking is to enable the reviewing court "to see what
major issues of policy were ventilated by the informal proceedings and why
the agency reacted to them as it did").
rulemaking" procedures in which case the agency is obliged to con-

duct a public hearing on the record after proper notification.2 40
The general rulemaking provision of section 553 permits several
significant exceptions to the notice-and-comment requirement. First,
the requirement does not apply to interpretive, procedural, or house-
hold rules, unless expressly mandated by the statute in question. 24 '
Accordingly, only substantive rules fall under the requirement. Sec-
ond, the section exempts the rulemaking process from the notice-
and-comment requirement in situations where the administrative
agency determines that the requirement is "impracticable, unneces-
sary, or contrary to the public interest. 2 4 2 Upon judicial review, the
agency's "good-cause" finding will be closely scrutinized. 2 43 Third,
the notice-and-comment requirement does not apply to military or
foreign affairs. 244 Finally, all proprietary matters including "public
property, loans, grants, benefits, or contracts" need not conform with
the requirement. 24 5 The broad proprietary exemptions have been
criticized since the government uses the spending power to pursue a
240. See United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 241 (1973)
(holding that when a statutory requirement of a hearing is ambiguous, a strong
presumption of informal rulemaking exists).
241. "Except when notice or hearing is required by statute, this subsection
does not apply-(A) to interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice . . . ." 5 U.S.C. §
553(b)(3)(A). Moreover, "a matter relating to agency management or person-
nel..." is exempted. Id. § 553(a)(2).
242. Id. § 553(b)(3)(B).
Except when notice or hearing is required by statute, this subsection
does not apply .... (B) when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefor in
the rules issued) that notice and public procedure thereon are impracti-
cable, unnecessary, or contrary to the public interest.
Id.
243. See, e.g., New Jersey v. EPA, 626 F.2d 1038, 1049-50 (D.C. Cir. 1980)
(holding that despite a time pressure to promulgate standards under the Clean
Air Act, agency rules approving state plans required notice and public com-
ment); see also Ellen R. Jordan, The Administrative ProcedureAct's "Good
Cause" Exception, 36 ADMiN. L. REv. 113 (1984) (cataloging the "good
cause" decisions and postulating that "[a]gencies should only use 'good cause'
procedures to frame narrow solutions to the most pressing regulatory prob-
lems").
244. See 5 U.S.C. § 553(a)(1).
245. Id. § 553(a)(2).
wide variety of social objectives, and the effect of the section 553
exemption is to immunize many important policy decisions from
public participation.246
4. Formal adjudication
The APA defines adjudication as the "agency process for the
formulation of an order., 247 Since the procedures employed by ad-
ministrative agencies to adjudicate individual claims or cases are di-
verse, any general description of administrative adjudication is sub-
ject to numerous exceptions and qualifications. 248 Essentially, the
procedures followed may be described as either "formal adjudica-
tion" or "informal adjudication., 249 Pursuant to the APA, formal
adjudication applies "in every case of adjudication required by stat-
ute to be determined on the record after opportunity for an agency
hearing ... .,250 Thus, the APA per se does not require formal adju-
dication; only if another statute besides the APA mandates a formal
hearing on the record will the administrative agency be bound to
conduct the formal adjudication process. Formal adjudications pur-
suant to the APA are sometimes called "full hearings," "evidentiary
hearings," or "trial-type hearings.",251 Sections 554, 556, and 557 of
the APA establish the general procedural specifications for formal
administrative adjudication. These procedures do not apply to the
vast majority of petitions for remedy against administrative action
which fall into the category of informal adjudication.
246. See 1 KENNETH CULP DAvis, ADMINISTRATIVE LAW TREATISE 588-96

(2d ed. 1978).
247. 5 U.S.C. § 551(7).
248. In 1983, almost 400,000 cases were brought to administrative law
judges for potential adjudication. The great majority of these were hearings on
welfare and disability benefits conducted by the Social Security Administra-
tion. See Jeffrey S. Lubbers, FederalAgency Adjudications: Trying to See the
Forest and the Trees, 31 FED. B. NEWS & J. 383, 384 (1984).
249. See id. at387.
250. 5 U.S.C. § 554(a).
251. In regard to the latter of these terms, it must be noted, however, that
there are significant differences between agency adjudications and court trials.
a. stageI: prehearingprocess
The first stage in the proceedings of formal adjudication is the
most fruitful time for settlement and mediation. Parties to formal
adjudication are always encouraged to settle their cases prior to the
formal hearing. 252 In 1990, Congress amended the APA to allow
administrative agencies to explore and use alternate dispute resolu-
tion such as mediation, conciliation, fact-finding, mini-trials, and ar-
bitration.253 A party, however, may not be compelled by an agency
to participate in alternate dispute resolution procedures. 254 Although
the head of an administrative agency may preside at a formal adjudi-
cation, in practice the conduct of the proceeding is almost always
delegated to a hearing officer.25 5 The officer who conducts the for-
mal adjudication is known as an Administrative Law Judge (ALJ).
Administrative Law Judges are appointed to perform the judicial
function of the agency, and they may not be assigned duties that
would conflict with their judicial role. 6 They are tenured employ-7
ees who may be removed or disciplined only for good cause.2
They are delegated broad powers to control the proceedings includ-
ing issuing subpoenas, administering oaths, ruling on offers of evi-
dence, disposing of all procedural requests, reaching findings of fact,
25
and rendering an initial decision in the case. s
The prehearing process is designed so that the parties receive
proper notice and appropriate opportunity for discovery.259 Other
interested parties are afforded the opportunity to intervene if their
participation will not unnecessarily complicate the proceeding and if
their point of view will not be represented by the named parties and
252. See Administrative Dispute Resolution Act, Pub. L. No. 101-552, § 2,

104 Stat. 2736, 2736 (1990) (authorizing and encouraging federal agencies to
use mediation).
253. See 5 U.S.C. §§ 571-583.
254. See id. § 572(a) ("An agency may use a dispute resolution proceeding..
ifthe parties agree ......
255. See id. § 573(a).
256. See id. § 3105.
257. See id. § 7521(a).
258. See id. § 556(c).
259. See id. § 554(b).
the agency staff.26° The APA provides that persons entitled to notice
of a hearing shall be timely informed of: (1) the time, place, and
nature of the hearing; (2) the legal authority and jurisdiction under
which the hearing is to be held; and (3) the matters of fact and law
asserted. 26 '
The named parties in an administrative adjudication are gener-
ally the private individuals and corporations that the agency action
affects. 262 In addition to the named parties, modem courts have
granted a wide spectrum of interest groups the right to be represented
in administrative adjudication including groups claiming various
forms of technological, economic, consumer, aesthetic, and ecologi-
cal injury.263 To establish a right to intervene in agency proceedings
a party must be able to show an "injury in fact" and that the interest
sought to be protected falls within the "zone of interests" regulated
by the statute.264 All parties to a proceeding have discovery rights to
gain the necessary information to prove their case. 265 Discovery
rights may be enforced through the use of the agency's subpoena
power to compel the presence of a witness at a hearing, or duces te-
cum, to compel the production of certain documents. 66 A statement
by a party showing the relevance of the evidence sought may be re-
quested by the agency, but once a valid request has been made, the
issuance of a subpoena is automatic. 267 An agency subpoena is
260. See id. § 554(c)(1).

261. See id. § 554(c)(1)-(3).
262. See id. § 554(b).
263. See, e.g., Nat'l Welfare Rights Org. v. Finch, 429 F.2d 725, 738-39
(D.C. Cir. 1970) (permitting welfare recipients and their state and national or-
ganizations to intervene in an administrative hearing of the Department of
Health, Education and Welfare).
264. See id. 734-35.
265. See 5 U.S.C. § 555(d).
266. See id.
267. See id.
November 2000] COMPARISON OFADMNISTRATIVE L4W 127
enforceable in a court of law.268 Moreover, an individual may have

access to government files under the Freedom of Information Act.269
b. stage 11: fonmal hearing

The formal hearing on the record affords the opportunity for a
party to present evidence in support of a claim. Generally, any evi-
dence offered is admissible. 270 The party who brings the petition for
remedy against the administrative action normally bears the burden
of proof.2 ' Pursuant to section 556(d), "the proponent of ... [an]
order has the burden of proof' and an order may not be issued "ex-
cept on consideration of the whole record or those parts thereof cited
by a party and supported by and in accordance with the reliable, pro-
bative and substantial evidence. 272 The general rule is that a case
must be proved, not by clear and convincing evidence or evidence
beyond a reasonable doubt, but by a preponderance of the evi-
dence.2 73
The APA provides that "[a]ny oral or documentary evidence
may be received, but the agency as a matter of policy shall provide
for the exclusion of irrelevant, immaterial or unduly repetitious
268. Agency subpenas [sic] authorized by law shall be issued to a party on

request and, when required by rules of procedure, on a statement or
showing of general relevance and reasonable scope of the evidence
sought On contest, the court shall sustain the process or demand to the
extent that it is found to be in accordance with law. In a proceeding for
enforcement, the court shall issue an order requiring the appearance of
the witness or the production of the evidence or data within a
reasonable time under penalty of punishment for contempt in case of
contumacious failure to comply.
Id.
269. See id. § 552.
270. See id. § 556(d).
271. See id.
272. Id. An exception has been made when a respondent to the National La-
bor Relations Board asserts an affirmative defense to a complaint. See NLRB
v.Transp. Mgmt.Corp., 462 U.S. 393,400 (1983).
273. See Steadman v. SEC, 450 U.S. 91, 104 (1981). However, in some
cases such as the deportation of aliens, the government may be required to
meet a clear and convincing evidentiary standard. See, e.g., Woodby v. INS,
385 U.S. 276, 285 (1966) (noting that "the Court has required the Government
to establish its allegations by clear, unequivocal, and convincing evidence").
LOYOLA OFLOS ANGELES LAWRE VIEW [Vol. 34:81
evidence. ' '274 Thus, the general rule is that any relevant evidence, in-
cluding hearsay, is admissible in administrative proceedings without
regard to the rules of evidence that apply to civil litigation in federal
court. 275 The agency is not permitted to rely on evidence that has not
been introduced into the record.276 Under section 556(e) of the APA,
"[t]he transcript of testimony
277
and exhibits ... constitutes the exclu-
sive record for decision.,
Under the APA, a party to an evidentiary hearing is entitled "to
conduct such cross-examination as may be required for a full and
true disclosure of the facts. ' 271 The difficult question for the ALJ is
when cross-examination will facilitate the full and true disclosure of
the facts of the case. In general, cross-examination is permitted to
challenge the credibility of a witness or to test the accuracy and
completeness of testimony. 279 The AD must draw a line between
unlimited cross-examination
280
and a reasonable opportunity to test op-
posing evidence.
274. 5 U.S.C. § 556(d).

275. Cf FED. R. EVID. 802 (stating that hearsay is generally not admissible
although there are many large exceptions to the general prohibition). Some
states follow the so called "residiuum rule," which requires that the adminis-
trative decision be based on at least some evidence that is not hearsay. See,
e.g., Carroll v. Knickerbocker Ice Co., 113 N.E. 507, 509 (N.Y. 1916) (re-
versing decisions of the Workmen's Compensation Commission that rested
solely on hearsay). But see Richardson v. Perales, 402 U.S. 389, 409-10
(1971) (stating that the residiuum rule does not apply to findings of federal
agencies).
276. See 5 U.S.C. § 556(e).
277. Id.; see also Seacoast Anti-Pollution League v. Costle, 572 F.2d 872,
881 (1st Cir. 1978) (holding that an administrator's reliance on materials out-
side the record violated the APA).
278. 5 U.S.C. § 556(d).
279. See id.; see also, e.g., Wirtz v. Baldor Elec. Co., 337 F.2d 518, 525 n.12
(D.C. Cir. 1964) (citing the legislative history of the APA).
280. See 5 U.S.C. § 556(d); see also, e.g., Bush v. Apfel, 34 F. Supp. 2d
1290, 1296 (N.D. Okla. 1999) (stating that the ALJ is permitted to "exercise
discretion and refuse to issue a subpoena where cross-examination is not 'rea-
sonably necessary to the full development of the case"').
c. stage II: decision making

Section 557(b) describes three types of decisions made by ALJs
in various situations. 28 1 First, when a hearing must be conducted on
the record and an ALT hears the case in place of the agency head,
then the ALJ renders an "initial decision" which becomes final un-
less appealed to the agency head.282 Second, in specific cases or by a
general rule, certain administrative agencies may require that the en-
tire record developed by the ALJ be certified to the agency for its de-
cision. In such cases, the ALJ "recommend[s] a decision." 2 3 Third,
in certain types of proceedings, such as those through which a license
is to be granted, the agency itself issues a "tentative decision" which
will become final after a period of time.284 The delay is used to
evaluate the effects of the decision. 285 The APA provides that
[a]U decisions, including initial, recommended, and tenta-
tive decisions, are a part of the record and shall include a
statement of-(A) findings and conclusions, and the rea-
sons or basis therefor [sic], on all the material issues of fact,
law, or discretion presented on the record; and (B) the ap-
propriate rule, order, sanction, relief, or denial thereof.286
The requirement that findings of fact and conclusions of law be
stated is intended to insure that the ALJ will carefully evaluate the
evidence and consider the discretionary choices.287 Moreover, in the
absence of a record of the ALJ's findings and conclusions, the court
would find it difficult to examine
288
an agency order when a party
elects to seek judicial review.
281. See 5 U.S.C. § 557(b).

282. Id.
283. Id.
284. Id. §557(b)(1).
285. See id. § 558(c).
286. Id. §557(c).
287. See id. § 558(c).
288. See Dunlop v. Bachowskd, 421 U.S. 560, 571 (1975) (holding that the
secretary's statement of reasons should include the ground of the decision and
essential facts).
LOYOLA OFLOSANGELES LAWRVIEW [Vol. 34:81
5. Informal administrative process

While the APA sets forth procedural models for rulemaking and
formal adjudication, these do not apply to the largest and most im-
portant category of administrative decision making. Informal adju-
dication constitutes the great bulk of the exercise of administrative
authority by the federal government. 89 Such adjudications are not
required to be determined on the record after a formal hearing, and
they are not subject to any of the provisions of the APA with the ex-
ception of "ancillary matters. 290 Section 555(e) requires an agency
to give prompt notice and explanation of the denial of any applica-
tion, petition, or other request.2 91 The general omission to specify
procedural safeguards for the vast majority of administrative deci-
sions seems justified on three grounds. First, the costs, time, and re-
sources necessary to subject every case to formal adjudication would
be prohibitive. Second, given the particularity of agency matters, the
drafters of such procedures would no doubt encounter enormous dif-
ficulty in designing a generally applicable and just procedure. Third,
to require trial-type procedural safeguards at the agency decision-
making level would be to establish a kind of lower-level judiciary
whose decisions would continue to be subject to review by the fed-
eral courts. To thus duplicate the judicial function would seem to
totally eviscerate the doctrine against the delegation of judicial
power.
III. THE JuRIDIc STRUCTURES AND PROCEDURAL LAW OF THE
APOSTOLIC SIGNATURA AND THE SUPREME COURT
This Part describes the juridic structures and procedural law of
the Apostolic Signatura and the Supreme Court. When either of the
supreme tribunals reviews an act of administrative power, it
289. See United States v. Hardage, 663 F. Supp. 1280, 1287 (W.D. Okla.
1987).
290. See, e.g., Citizens Nat'l Bank of Maplewood v. Saxon, 249 F. Supp.
557, 559 (E.D. Mo. 1965).
291. See 5 U.S.C. § 555(e). "Prompt notice shall be given of the denial in
whole or in part of a written application, petition, or other request of an inter-
ested person made in connection with any agency proceeding." Id. (emphasis
added).
scrutinizes the record to insure that no procedural error has been

committed by the authority who posited the administrative act. w2
Natural justice requires that a party directly affected by an act of ad-3
ministrative power have notice and the opportunity to be heard.2
Additionally, more specific procedural requirements, of course, are
stipulated in both canon law and United States federal law. Upon
determining that an egregious error in procedure occurred in the 94
case
under review, the supreme tribunal acts to correct the wrong7
This section first discusses the general structure of the Apostolic
Signatura by examining its constitutional division into three pertinent
sections and the specific rules set forth in the Normae Speciales. The
section will then examine the structure of the United States federal
judiciary pursuant to Article II of the Constitution. Next the section
will detail the procedural issues at the Second Section by examining
its limitations in hearing certain cases. Finally the section will ex-
plain the procedural issues of the United States Supreme Court by
analyzing the particular requirements of standing, timing, funda-
mental due process, and competency.
A. The Structure of the Apostolic Signatura
1. General structure
The Apostolic Constitution Pastor Bonus recognizes three Tri-
bunals: the Sacred Penitentiary, the Roman Rota, and the Apostolic
Signatura.295 The Sacred Penitentiary, in fact, does not function as a
292. See PASTOR BONUS art. 123, § 1; STRAUSS, supra note 80, at 81-82.
293. See Mullane v. Cent Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950) (noting that the "elementary and fundamental requirement of due proc-
ess in any proceeding which is to be accorded finality is notice reasonably cal-
culated, under all the circumstances, to apprise interested parties of the pen-
dency of the action and afford them an opportunity to present their
objections").
294. See PASTOR BONUS art 123, §2; TRIE, supra note 7, at 19.
295. This order reflects a historical perspective since the Sacred Penitentiary
was established first Over the course of time the need for specialization re-
quired the creation of the other two tribunals. The current version of Pastor
Bonus adopts the order first recognized in 1908 in SAPIENT CONSiLlO art. 7-19
(originally promulgated at Ordo servandus in sacris Congregationibus Tribu-
nalibus, Officiis Romanae Curiae, 40 ASS 36 (1908)), and in 1917 CODE
c.258, § 1. In 1967, Regimini Ecclesiae Universae shifted the order by placing
LOYOLA OFLOSANGELES LAWREVIEW [Vol. 34:81
true tribunal. Instead, as Regimini Ecclesiae Universae (1967) had

affirmed, the competence of the Sacred Penitentiary "comprises all
things which concern the internal forum, including the non-
sacramental forum, and accordingly, this tribunal grants favors, ab-
solutions, dispensations, commutations, sanctions, and condonations
for the internal forum," 2 9 6 Moreover, the general procedural re-
quirements stipulated in the 1983 Code do not apply to the function-
ing of the Sacred Penitentiary.297
In contrast, the Roman Rota serves as the ordinary judicial ap-
peals tribunal.2 98 Pursuant to Canon 1444, the Rota accepts cases in
the third instance when the sentences of the two lower judicial tribu-
nals have failed to comport. 299 The Rota also hears appeals from
cases in the second instance when the ordinary judicial tribunal of
the first instance has passed a sentence, and the appellant elects to
appeal to Rome rather than to the local court of appeal. 300 Addition-
ally, the Rota hears cases in the first instance as stipulated by law and
301
at the request of the Roman Pontiff.
the Apostolic Penitentiary after the other two tribunals. See REGIMINI
ECCLESIAE UNIVERSAE art. 112 (originally promulgated at Paulus Pp. VI, Con-
stitution Apostolica de Romana Curia: "Regimini Ecclesiae Universae", 59
AAS 885 (1967)).
296. REGIMINI ECCLESIAE UNIVERSAE art. 112; see also PASTOR BONus art.
117.
297. See Zenon Grocholewski, I tribunaliapostolici,in 1 LE NOUVEAU CODE
DE DROIT CANONIQUE/THE NEW CODE OF CANON LAW ACTES DU V0
CONGRkS INTERNATIONAL DE DROIT CANONIQUE/PROCEEDINGS OF THE 5TH
INTERNATIONAL CONGRESS OF CANON LAW 458 (1986).
298. See 1983 CODE c.1443. See generally Edward M. Egan, Appeal in
MarriageNullity Cases: Two Centuries of Experiment and Reform, in CANON
LAW SOCIETY OF AMERICA, PROCEEDINGS OF THE FORTY-THIRD ANNUAL
CONVENTION 132, 135-38 (1981) (noting that the Roman Rota looks over local
tribunals throughout the world).
299. See 1983 CODE c.1444, § 2. When two lower tribunals have passed
conforming sentences, the matter is considered res judicata. See id. cc.1641-
1644. The Rota does not serve as the tribunal of third instance in Spain where,
by way of exception, such cases may be entertained by the Spanish Rota. See
Pius Pp. XII, Motu ProprioDe Rota NuntiaturaeApostolicae in HispaniaDe-
nuo Constituenda, 39 AAS 155 (1947); see also J.L. Acebal Lujin, Normas
para la ejecuci6n de la carta apost6lica m.p. <lusti ludicis>>,48 REVISTA
ESPARIOLA DE DERECHO CANONICO 607-18 (1991) (explaining the role of the
Spanish Rota as the tribunal of third instance).
300. See 1983 CODE c.1444, § 1.
301. See id. c.1444, § 2, c.1405, § 3.
Article 122 of the Apostolic Constitution Pastor Bonus divides

the Apostolic Signatura into three sections.302 The so-called "First
Section" is the supreme tribunal of ordinary justice in the church
dealing with specific judicial actions regarding the judges or deci-
sions of the Roman Rota and other judicial tribunals.30 3 The "Second
Section" is the supreme tribunal of administrative justice dealing
with conflicts between private persons and an administrative author-
ity.30 4 With the suppression of the proposed administrative tribunals,
it is also the only administrative tribunal. In its "Third Section," the
Apostolic Signatura functions as a department or congregation of
justice.305 It seems less than accurate to describe the Third Section
as a tribunal since it deals with the general administration of justice
in the church rather than a petition for remedy against the decree of a
judicial or administrative authority.30 6
Following the promulgation of Regimini Ecclesiae Universae in
1967, several commentators opined that a system of double jurisdic-
tion had been introduced. 0 7 It has further been observed that the
creation of the Second Section compliments the process of
302. See PASTOR BONUS art 122.

303. See id. arts. 41-44.
304. See Ignacio Gordon, S.J., Origine e sviluppo della giusti-ia amminis-
trativanella Chiesa,in DE IUSTITIA ADMINISTRATIVA IN ECCLESIA 14, 15 n.2a
(Pio Fedele ed., 1984).
305. See PASTOR BoNUS arts. 48-61.
306. After identifying the First Section as the "Supreme Tribunal of ordinary
jurisdiction" ("Supremo Tribunale della giurisdizione ordinaria") and the Sec-
ond Section as the "Supreme Tribunal for the contentious-administrative proc-
ess" ("Supremo Tribunale contenzioso-amninistrativo"), Grocholewsld refers
to the Third Section as the "congregazione della giustitia." Zenon Grocholew-
ski, I Tribunali,in LA CURIA ROMIANA NELL COST. AP. "PASTOR BONUS" 395,
406, 412 (Piero Antonio Bonnet & Carlo Gullo eds., 1990).
307. See, e.g., Zenon Grocholewvsld, La Sectio Altera della Segnatura Apos-
tolica con particolare riferimento alla procedura in essa seguita, in DE
IUSTITIA ADMINISTRATIVA INECCLESIA 23 (1984) (originally published in 54
APOLLINARIS 104-06 (1981)); Gordon, supra note 16, at 311; see also
PATRICK VALDRINI, CONFLITS ET RECOURS DANS L'EGLISE 65 (1978) (stating
that the Second Section is similar to certain European systems of administra-
tive law that employ separate administrative tribunals); Giuseppe Lobina, La
giustizia amministrativa, in LA LEGGE PER L'UOMO: UNA CHIESA AL SERVIZIO
397 (E. Cappellini ed., 1979) (stating that a system of double jurisdiction had
been introduced).
hierarchical recourse in the church as an "addition" or "supple-

ment.5 30 8 Pursuant to the 1983 Code, the Second Section of the Ap-
ostolic Signatura serves as the supreme administrative tribunal in the
church. 9 Section 2 of Canon 1445 provides that
[t]his same tribunal deals with controversies which arise
from an act of ecclesiastical administrative power, and
which are lawfully referred to it [as well as] with other ad-
ministrative controversies referred to it by the Roman Pon-
tiff or by departments of the Roman Curia, and with con-
flicts of competence among these departments. 10
Since up to the level of the Apostolic Signatura the church maintains
a system of hierarchical recourse, one may pose the question as to
what extent the innovation constitutes a true system of double juris-
diction. As it remains an open question, several observations seem
in order.
First, although the 1983 Code confirms the coexistence of a dis-
tinct structure and process for administrative justice along with that
provided for judicial matters within the Apostolic Signatura, the pre-
sent structure of the Apostolic Signatura fails to constitute a system
of double jurisdiction in an absolute sense. 31' Essentially, the
308. The innovation of Regimini Ecclesiae Universae was not to create an

alternate to the already existing structures of recourse in the church, but in
Grocholewski's words, "it constitutes a certain addition, a certain supplement
to hierarchical recourse, in the sense that one is able to bring an appeal only
after a negative result in hierarchical recourse." Grocholewski, supra note
307, at 23-24. Another view considers the Second Section as an organ of
"special jurisdiction." See Ernmanno Graziani, De Supremi Organismi Conten-
tioso-administrativi natura, 67 PERIODICA 537, 539 (1978); Arcangelo
Ranaudo, Considerazioni su alcLuni aspetti dell' attivita amministrativa can-
onica, 93 MoNITOR ECCLESIASTICUS 332 (1968).
310. 1983 CODE c.1445, § 2.
311. Following the innovation introduced by Regimini Ecclesiae Universae,
there was also discussion as to whether the Second Section constituted a spe-
cial administrative tribunal or simply a special section of the ordinary judicial
tribunal. The two opinions were expounded upon at the symposium held in
honor of the first centenary of the Faculty of Canon Law at the Pontifical Gre-
gorian University. The first opinion was set forth by Graziani. See Graziani,
supra note 308, at 537-45. A statement of alternate opinion can be found in
Gunther Raab, Dialogus, 67 PERIODICA 572 (1978). Subsequently, the posi-
tion that the Second Section coexists as a distinct tribunal in the Apostolic Sig-
Signatura remains one body or tribunal with the same college of

judges and officials performing judicial and administrative functions
depending on the particular case. Unlike a true system of double ju-
risdiction, the supreme administrative tribunal of the church is not a
completely
312
separate and distinct organ from the supreme judicial tri-
bunal.
Second, since the innovation of Regimini Ecclesiae Universae in
1967, it has become clear that the Second Section is a tribunal of
limited competency. 313 Although Regimini Ecclesiae Universae
spoke of both "appear' and "recourse" to the Second Section, Pastor
Bonus employs only the latter term 314 The reason for the omission
in the new Apostolic Constitution seems to be the desire for more
technical precision in defining the object of the process in the Second
Section.31 5 In Canons 1628 through 1640 of the 1983 Code, the term
"appear' refers only to the judicial process. 316 Instead, the use of
"recourse" in Pastor Bonus signifies exception taken from a decree in
the contentious-administrative process.317 Third, the church's system
of hierarchical recourse is thought to originate from the mystery of
hierarchical communion. 31S This profound theological reason sus-
tains the omission of a system of national administrative tribunals
from both the 1917 Code and 1983 Code. 3 19 The creation of the
Second Section at the Apostolic Signatura was not intended to abro-
gate hierarchical recourse, but only to serve as a supplement to the
system at the level of the Roman Curia.320 Pursuant to Pastor Bonus,
the Apostolic Signatura constitutes one of the Dicasteries of the
natura seems to have received at least tacit endorsement by several leading ex-
perts. See, e.g., Gordon, supra note 304, at 16-17; Grocholevski, supra note
307, at 24-25; see also ERMANNO GRAZIANI, DE IUSTITIA ADMINISTRATIVA
81-93, 95-102 (1973) (quoted in Grocholevsld, supra note 307, at 24).
312. See LABANDEIRA, supra note 20, at 716-23.
313. For a comprehensive discussion of the competency of the Second Sec-
tion, seeGIUSEPPE LOBINA, LA COMPETENZA DEL SUPREMO TRIBUNALE
DELLA SEGNATURA APOSTOLICA, CON PARTICULARE RIFERIMENTO ALLA
"SECTIO ALTERA" E ALLA PROBLEMATICA RISPETTIVA 104-06 (1971).
314. See PASTOR BONUS arts. 19, 123.
315. See Grocholewski, supranote 297, at 408.
316. See 1983 CODE cc.1628-1640.
317. See PASTORBONUS art. 123, § 1.
318. See id.
319. See suprapp. 103-104.
LOYOLA OF LOS ANGELES LA WRE VIEW [Vol. 34:81
Roman Curia.321 Although the Signatura enjoys competence over re-

course from the decisions of the other Dicasteries, like the French
Court of Cassation, it functions not as a superior court, but as a com-
plement to the function of the Dicasteries.322
2. Specific structure
a. officials
While the Apostolic Constitution Pastor Bonus prescribes the
general structure of the Apostolic Signatura, more specific rules ap-
pear in the Normae Speciales issued by Pope Paul VI on March 23,
1968.323 When the Normae Speciales were approved by Pope Paul
VI, Article I contemplated a college of twelve Cardinals named to
the Apostolic Signatura by the Supreme Pontiff.324 The fact that the
college was composed of cardinal judges attested to the dignity of
the supreme tribunal. Given the gravity of the work of the Signa-
tura-doubts posed to it that pertain to important legal issues in the
church and that derive from sentences of the Roman Rota, the Ro-
man Congregations and any other body in the church-such a com-
position seemed justified. 5
Moreover, there was a practical reason for the selection of car-
dinals as judges, as they are generally men of great and diverse ec-
clesiastical knowledge and experience. 326 As the work of the Second
321. See PASTOR BONUS art. 2, § 1.

322. See id. art. 1, § 1. According to Article 121, the Signatura is one Di-
castery, which functions as both the Supreme Tribunal (Arts. 122-123, i.e. First
and Second Sections), and the administrative organ which sees to the proper
administration of justice in the church (Art. 124, Third Section). See id. arts.
121-124.
323. See NORMAE SPECIALES (originally promulgated at Normae speciales in
Supremo Tribunali Signaturae Apostolicae ad experimentum servandae post
Constitutionem Apostolicam PauliPP. VI "Regimini Ecclesiae Universae," 59
PERIODICA 75 (1970)); 1 IGNACIO GORDON, S.J., & ZENON GROCHOLEWSKI,
DOCUMENTA RECENTIORA CIRCA REM MATRIMONIALEM ET PROCESSUALEM
372-98 (1977); Supremum Tribunal SignaturaeApostolicae, 53 APOLLINARIS
249-80 (1970).
324. See NORMAE SPECIALEs art. 3.
325. See NORMAE SPECIALEs arts. 17-21.
326. For a discussion of the suitability of Cardinals as judges, see Gro-
cholewski, supra note 307, at 19, 64-66.
November 2000] COMPARISONOFADMINISTRATIVELAW 137
Section involved increasingly complex questions of administrative

law, it seemed desirable to include experts in administrative law
among the college of judges.327 Certain general provisions of Pastor
Bonus seemed to envision some flexibility in the composition of the
college of judges. 32' Following the promulgation of Pastor Bonus,
the Holy Father, in fact, added the names of several bishops to the
college of judges who are experts in administrative law. 329 The
names of all the members of the college of judges are listed in the
Annuatio Pontificio.33 0 As opposed to the Roman Rota which has a
permanent college of judges, the judges of the Apostolic Signatura
are convened as necessary on an ad hoc basis. 33' All members of the
college of judges are, of course, invited to attend the plenary sessions
of the Signatura.332
The Sovereign Pontiff selects a bishop, generally a member of
the College of Cardinals, to serve as prefect who governs the work of
the Apostolic Signatura 3 To assist the prefect, a secretary is ap-
pointed, who advises the judges and who, de facto, functions to co-
ordinate the work of the Signatura.334 In addition, there is the pro-
moter of justice, defender of the bond, substitute promoter of justice,
and substitute defender of the bond.335 Other personnel include a
327. See Zenon Grocholewski, La Segnatura Apostolica nell'attualefasedi

evoluzione, in DILEXIT IUSTITIAM, SCRIPTA IN HONOREM AURELII SABATTANI,
CURANTIBUS Z. GRoCHOLEWSKI ET V. CARCEL ORTi 218-25 (1984); see also
Grocholewski, supra note 297, at 402-04 (arguing that the addition of experts
in canon law as judges is necessary to deal with the complexity of the issues).
328. See, e.g., PASTOR BoNus art. 3, § 1 ("Unless they have a different
structure in virtue of their specific nature or some special law, the dicasteries
are composed of the cardinal prefect or the presiding archbishop, a body of
cardinals and of some bishops .... ."); id. art. 3, § 2 ("According to the specific
nature of certain dicasteries, clerics and other faithful can be added to the body
of cardinals and bishops."); see also Grocholewski, supra note 297, at 402-03.
329. See Segretaria di Stato, Diarium Romanae Curiae, 83 AAS 630, 631
(1991); see also Grocholewski, supra note 297, at 403 (explaining that the
need for an expert knowledge of canon law led to the addition of bishops, who
are not also members of the College of Cardinals, to be appointed judges).
330. See ANNuARIO PONTIFICIO PER L'ANNO 2000, at 1296 (2000).
331. See id.
332. See id.
333. See NORMAE SPECIALES art. 1, § 1.
334. See id. § 4.
335. See id. art. 2.
chancellor, archivist, protocollist, and various notaries and consul-

tors.336 The consultors are of two grades: votantes and referen-
darii.337 Although the two types perform the same service of writing
opinions,
8
technically only the voters have a vote in the Congres-
33
sus.
Pastor Bonus also stipulates that procurator-advocates be ap-
pointed at the Apostolic Signatura such as those who serve at the
Roman Rota. 339 These procurator-advocates are to be employed in
cases of hierarchical recourse, and they must be nominated by the
cardinal secretary of state.340 The procurator-advocates who serve
the Roman Curia do not play the same adversarial role as attorneys in
the American civil courts. Although they represent the interests of a
certain party in the specific dispute, the primary function of the
procurator-advocates is to assist the tribunal in ascertaining the
truth.34 1 The role then must be seen as less contentious than that of
their counterparts in the American judicial system.
b. parties
In the contentious-administrative process at the Second Section
of the Apostolic Signatura, three distinct postures emerge. In the
first, recourse is brought against a decree that has been confirmed by
a Dicastery of the Roman Curia. 342 Alternatively, the recourse con-
cerns a decree that has been reformed by the Dicastery. 43 Finally,
recourse may be taken against a decree originating from the Di-
castery itself.344 The petitioner in the contentious-administrative
process before the Second Section is any private person or juridic
person who alleges an injury as a result of the administrative act of
336. See id.

337. Translated here respectfully as "voters" and "referends." Id. art. 3.
338. See id. art. 12.
339. See PASTOR BONUs arts. 183-185.
340. See Grocholewski, supra note 10, at 12-13.
341. For a discussion of how the process before the Second Section is a
search for truth rather than one of satisfying individual interests, see Renato
Baccari, La giustizia amministrativa canonica in finzione partecipativa,in I
STUDI IN ONORE DI PIETRO AGOSTINO D'AVACK 174-75 (1976).
343. See id. at 474-75.
344. See id. at471.
an ecclesiastical superior.345 The allegedly injured party must first

have posed hierarchical recourse to the Dicastery of the Roman Curia
designated as the hierarchical authority of the one who issued the
challenged decree.346 After the Dicastery has rendered its decision,
the petitioner may make a recourse against that decision to the Sec-
ond Section on the ground of a violation of law. 347 A decree of the
Apostolic Signatura requires that the petitioner demonstrate a direct
connection with the allegedly adverse effect of the challenged ad-
ministrative act.
Certain requirements must be met before a decision will be re-
viewed. The following case is an illustration of such requirements
and how they are met. 34' The decree resulted from a case in which a
group of the faithful brought a petition for remedy against the ad-
ministrative act of the Archbishop which ordered the demolition of a
certain parish church. "-49 Upon hierarchical recourse, the Congrega-
tion for Clergy declared that the decision should be left to the Arch-
bishop's discretion in light of the pastoral and financial exigencies
that led to his decision. 350 The group then sought to bring a petition
for remedy to the Second Section.3 5 During the contentious-
administrative process at the Second Section, consultation with the
345. The English word "petitioner" is used for the Latin "recurrens." "Peti-
tioner" is also used very often in American administrative justice to designate
the party who challenges the administrative decision. For a general discussion
of the role of the petitioner before the Second Section, see LABANDEIRA,, supra
note 20, at 746-47, and Zenon Grocholewsld, L'autorititamministraliva come
ricorrenteallaSectio Altera della SegnaturaApostolica, 55 APOLLINARIs 752
(1982).
347. See id.; Grocholewsd, supra note 307, at 45-51.
348. See Supremum Tribunal Signaturae Apostolicae, Prot. N. 17477185
C.A., Archdioecesis X, Demolitionis Ecclesiae S.E. (Consilium pro Servanda
EcclesiaparoecialiS.E. - Congregatiopro Clericis), Incid.: recursus adversus
decretum reiectionis er parte Congressus huus Supremi Tribimalis - Rosalius
losephus Castillo Lara, Ponens (21 November 1987), 20 COMM UNICATIONES
88 (1988) [hereinafter Decision of the Apostolic Signatura. 21 November
1987].
349. See Pontificia Commissio Codici luris Canonici Authentice Interpre-
tando, Responsiones adpropositadubia, 80 AAS 1818 (1988).
350. See Decision of the Apostolic Signatura,21 November 1987, supra note
348, at 89.
351. See id. at 89-90.
Pontifical Commission for the Authentic Interpretation of the Code

of Canon Law determined that the group lacked "active legitimation"
as a group. However, the Second Section stated that the individual
persons could enjoy active legitimation to propose a recourse "pro-
vided that the gravamen is actually suffered., 352 The Signatura itself
then decided that as individuals they lacked active legitimation be-
cause they failed to meet this condition. 3 The group had failed to
demonstrate a "personal, direct and current" interest in the chal-
lenged act.354 Hence, the Commission resolved the question about
the group as a group, and the Signatura decided about the individuals
in the group. As previously stated, the petitioner can be a private
person or a juridic person. 355 The Commission seemed to reason that
since the group did not constitute a juridic person, the members
would have to approach the Signatura as private persons.356
A major question in the process before the Second Section con-
cerns whether the inferior authority who issued the originally chal-
lenged decree, or the Dicastery which reviewed the decree, consti-
tutes the resisting party.357 A 1970 Decision of the Apostolic
Signatura determined that it is the inferior authority, and not the Di-
castery, who remains the resisting party.358 To the contrary, numer-
ous authors have argued that in certain cases the resisting party is the
Dicastery which issued the challenged decree. 359 The thesis has
352. Pontificia Commissio Codici Iuris Canonici Authentice Interpretando,

supra note 349, at 1818-19.
353. See Decision of the Apostolic Signatura,21 November 1987, supra note
348, at 91.
354. Id.
355. See supra note 345 and accompanying text.
356. For a critical discussion of this issue, see HAYWARD, supra note 3, at
131-39. The author notes that, inter alia, the decision could have the effect of
denying administrative recourse at the Apostolic Signatura to many groups and
associations with legitimate complaints. See id. at 135.
358. See lurisprudentia Supremi Tribunalis Signaturae Apostolicae, Re-
sponsa, Declarationes: 11, Declaratio de recursu adversus decisionem Di-
casteriiCuriaeRomanae, 60 PERIODICA 349 (1971).
359. See, e.g., LABANDEIRA, supra note 20, at 749-51; Enrico Bernardini,
L 'istituzione della Sectio Altera del Supremo Tribunale della Segnatura Apos-
tolica, in lus POPULI DEI, MISCELLANEA IN HONOREM RAYMUNDI BIDAGOR
75-76 (1972); Carmel De Diego-Lora, El controljudicial del gobierno central
de la Iglesia, 11Ius CANONICUM 349 (1971).
some merit especially in the cases when the Dicastery has either re-
formed the decree of the inferior authority or when a new decree
originates from the Dicastery. It is difficult to suggest that the infe-
rior authority is the resisting party when it is not the author of the
challenged decree under consideration at the Second Section.360 Ze-
non Grocholewski has suggested a solution that both the inferior
authority and the Dicastery be considered together as the resisting
36
party.
B. Structure of the U.S. FederalJudiciaty
Pursuant to Article IH of the Constitution, the "judicial power of
the United States shall be vested in one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and es-
tablish. 362 With some notable exceptions, the inferior federal courts 3 63
are organized along geographic rather than subject-matter lines.
At the first level of the federal judiciary are the district courts. 3 " An
appeal from the district courts is made to the second level or circuit
courts of appeal. 365 Appeals from the circuit courts may be heard by
the third6 and highest level of the judicial structure, the Supreme
36
Court.
360. See LABANDEIRA, supra note 20, at 749-51; see also Grocholewski,
supra note 122, at 472-73 (discussing relationships between the inferior
authority and the Dicastery).
362. U.S. CoNsT. art. III, § 1, cl. 1. For a systematic overview of the federal
courts, see PAUL M. BATOR ET AL., HART AND ,VECHSLER'S THE FEDERAL
COURTS AND THE FEDERAL SYSTEM (2d ed. 1973).
363. Special courts include the Tax Court, the Patent Court, the Claims
Court, the Court of International Trade, and the bankruptcy courts. A special
circuit court, the United States Court of Appeals for the Federal Circuit, is an
appellate court for these trial courts, with the exception of the bankruptcy
courts whose decisions are appealed to the appropriate geographic circuit
court. See BATOR ET AL., supra note 362, at 47-49; FANNIE J. KLEIN,
FEDERAL AND STATE COURT SYSTEMS-A GUIDE 187 (1977).
364. See KLEIN, supra note 363, at 179.
365. See id. at 172.
366. See id. at 171; JOSEPH F. SPANIOL, HOUSE OF REPRESENTATIVES
COMMITTEE ON THE JUDICIARY, THE UNITED STATES COURTS: THEIR
JURISDICTION AND WORK 4 (1989).
1. United States district and circuit courts

The United States is presently divided into ninety-four judicial
districts based on geography, with a number of federal district judges
appointed to hear cases in each district.367 The district court is the
ordinary trial court in the federal judicial system. 36 The judge pre-
sides over the trial which often includes a jury comprised of citizens
empowered to hear evidence and reach findings of fact.369 Juries are
not employed in administrative matters so that the federal judge
alone almost invariably hears and decides administrative cases. 370 A
decision of a district court affects the individual case being litigated,
and it has only minor precedential impact beyond the parameters of
the particular controversy.
Sitting over the district courts, there are twelve circuit courts of
appeal in the United States. 37' The eleven geographic circuits vary in
size and include whatever district courts lie within their bounda-
ries.372 The District of Columbia Circuit exercises jurisdiction over
that small geographic area and over certain types of questions and
cases designated by Congress. 373 7 Each circuit is comprised of a
number of Article III judges. 374 The circuit court hears all the ap-
peals from the United States district courts within its circuit, as well
as certain cases that, by means of particular statutory provision, may
be brought directly from a federal agency bypassing the federal dis-
trict court.375 In contrast to the Supreme Court which chooses the
367. At the time of this writing, there are over 630 federal district judges ap-
pointed by the president and approved by the Senate to hear cases throughout
the ninety-four judicial districts. See 28 U.S.C. § 133 (2000).
369. See id. at 182.
370. See Harold H. Bruff, CoordinatingJudicial Review in Administrative
Law, 39 UCLA L. REV. 1193, 1195 (1992). An administrative agency's ability
to impose certain serious penalties and confinement under some circumstances
constitutes an exception to the general policy. Professor Jaffe has argued that
in such cases a jury trial may be required. See Louis L. JAFFE, JUDICIAL
CONTROL OF ADMINISTRATIVE ACTION 109-15 (1965).
371. See KLEIN, supra note 363, at 172-73.
372. See id.
373. See BATOR ET AL., supra note 362, at 47.
374. At the present time, there are approximately 179 courts of appeal
judges. See 28 U.S.C. §44.
375. Particular statutes sometimes place the first level of judicial review of
November 2000] COMPARISON OFADMINSTRATIVE LAW 143
cases it will hear, an appeal to the

37 6
circuit court subsists by the right
of the parties to the controversy.
The general practice of the circuit judges is to sit in panels of
three to hear cases.3 77 Sometimes, the judges of a particular circuit
may sit en bane to rehear an appeal from the tribunal, especially
when another tribunal of judges in the same circuit reached a con-
flicting decision on a similar issue. 378 All cases are briefed by the
opposing parties, and subsequently, oral arguments are held on the
important legal issues.379 Following oral argument, the circuit judges
may decide the case by issuing a published opinion, or alternatively,
by rendering a nonpublished decision.3 8 The written opinions of the
circuit court hold precedential value for the entire geographic area of
the circuit so that a circuit court decision must be followed by a dis-
trict court within its region.38 1 For a federal administrative agency
entrusted with regulating some national interest, this arrangement
means that a circuit court decision in New York by the United States
Court of Appeals for the Second Circuit may conflict with a decision
by the United States Court of Appeals for the Ninth Circuit in a near
to identical case involving the same agency in San Francisco. Such
conflicts between the circuits can only be resolved by appeal to the
United States Supreme Court. 8 2 By reason of special statute and its
proximity to the federal agencies, the United States Court of Appeals
administrative decisions in the circuit courts, where a formal record and elabo-
rate findings of fact have resulted from the administrative process itself For a
discussion of the need to avoid multiple levels ofjudicial review, see David P.
Currie & Frank I. Goodman, Judicial Review of FederalAdministrafive Ac-
tion: Questfor the Optimum Forum, 75 COLUM. L. REV. 1, 5-7 (1975). See
generally HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW
173-95 (1973) (critiquing the federal system of judicial review of administra-
tive action).
376. See 28 U.S.C. § 636(c)(3) (1994 & Supp. IV 1999).
378. See id. at 174.
379. See id. at 170 (discussing procedures used by the Supreme Court).
380. For a general description of appellate practice, see ROBERT J.
MARTINEAU, MODERN APPELLATE PRACTICE, FEDERAL AND STATE CIVIL
APPEALS (1983). See also PAUL D. CARRINGTON ET AL., JUSTICE ON APPEAL
(1976) (giving an overview of the appellate processes at the state and federal
levels).
381. See CARRINGTON ETAL., supra note 380, at 147.
382. See id. at 158.
for the District of Columbia tends to hear many more administrative-

law cases than the other circuits, and consequently, its judges are
considered to have developed a special expertise. This is not to sug-
gest that the other circuit courts are in any way obliged to follow the
decisions of the D.C. Circuit. Although the D.C. Circuit has been
able to build up a corpus of administrative-law decisions, the Su-
preme Court has not been reluctant to reverse the D.C. Circuit on
numerous occasions.383
2. United States Supreme Court
The United States Supreme Court constitutes the supreme ad-
ministrative tribunal for the nation.3 84 It is composed of nine Justices
who hear all cases en banc. 385 Under Article III of the Constitution,
it has "appellate Jurisdiction, both as to Law and Fact, with such ex- 386
ceptions and under such regulations as Congress shall make."
Although Congress has the power to limit the jurisdiction of the Su-
preme Court, it has conferred on the Court wide discretion as to what
appeals it will hear.387 Virtually all reviews of administrative deci-
sions at the Supreme Court require that the petitioner file for a "writ
of certiorari" from the Court.3 88 A writ of certiorari seeks to per-
suade the Court to review a lower court decision by advancing rea-
sons of legal importance that merit review. 389 Among the most
383. See Antonin Scalia, Vermont Yankee: the APA, the D.C. Circuit, and
the Supreme Court, 1978 SUP. CT. REV. 345, 360-62.
384. See ROBERT L. STERN & EUGENE GRESSMAN, SUPREME COURT
PRACTICE FOR PRACTICE IN THE SUPREME COURT OF THE UNITED STATES (7th
ed. 1993) (explaining the history, procedures, and purpose of the Supreme
Court).
385. See id.
386. U.S. CoNsT. art. III, § 2; see also Henry M. Hart, The Power of Con-
gress to Limit the Jurisdictionof Federal Courts: An Exercise in Dialectic, 66
HARV. L. REv. 1362, 1364 n.13 (1953) (discussing the power of Congress to
limit the jurisdiction of federal courts).
387. See generally 28 U.S.C. §§ 1251-1259 (1994) (providing for original
jurisdiction in addition to discretionary appellate jurisdiction). See also U.S.
CONST. art. III, cl. 2 (providing constitutional grant ofjurisdiction).
388. For a general description of the writs of certiorari and mandamus, as
well as injunctive relief, in the administrative process, see JAFFE, supra note
370, at 165-93.
389. The opposing party may argue that review is unnecessary, since
whether the decision below was correct or not, the petition fails to raise any
November 2000] COMPARISON OF ADMINISTRATIVE L4W 145
persuasive reasons is that two different circuit courts have reached

conflicting decisions in similar cases. Generally, when a writ simply
alleges that a lower court erred in law or in fact, the Supreme Court
refuses to hear the case. 90 In order for a writ of certiorari to issue,
four of the nine Justices on the Court must agree. 39' The focus of the
Court's jurisdiction is to decide significant legal issues rather than to
resolve particular controversies.-
If a petition for certiorari is granted, the case will be fully
briefed and oral argument will take place in front of the nine Jus-
tices.393 Once the Justices have reached a decision, a written opinion
is published. 4 The Court need not be, and very often is not, unani-
mous in its decisions; a five-member majority is sufficient to deter-
mine any particular issue.395 The Court's decisions carry preceden-
39 6
tial authority for all other courts and agencies of the government.
It is important to distinguish between the holding of the Court on a
particular issue and the reasons (dicta) set-forth in the Court's deci-
sions which justify the holding. Only holdings, and not dicta, con-
stitute legal precedent, although the latter may give indications of the
Court's view on future controversies.
One of the implications of the Supreme Court's certiorari prac-
tice is to render it unlikely that an appeal of an administrative
significant legal question that merits the Court's attention. See generally
STERN & GRESSMAN, supra note 384, at 370-76 (detailing the procedures by
which the Supreme Court grants certiorari).
390. See id.
391. The Supreme Court grants less than five percent of the writs. See The
Supreme Court,1985 Term, PartIV-Leading Cases, 100 HARv. L. REv. 100,
304 (1986). In the 1999-2000 Term the Supreme Court heard eighty-one cases
taken from 8445 petitions. See StatisticalRecap ofSupreme Court's Workload
DuringLast Three Terms, 69 U.S.L.W. 3134 (2000). The numbers used in the
rest of the article are taken from the 1983 Term as the best source detailing a
breakdown of the cases heard by the Supreme Court is the one cited herein, see
Strauss, supra note 11.
392. See STERN & GRESSMAN, supranote 384, at 162-207.
393. See id. at 533-609.
394. See id. at 628-29.
395. See id. at 1-9.
396. See generallv Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347-
48 (1816) (stating the need for uniformity in interpreting the Constitution and
that the Supreme Court is the judicial body that has ultimate power to deter-
mine the meaning of laws).
decision is to be heard. 7 The pyramid of federal appellate review

increases in steepness at each superior level. While an appeal from
the decision of a district court or agency to a circuit court will ordi-
narily be permissible as a matter of legal right, an appeal to the Su-
preme Court is discretionary.39 s As a result, the circuit courts of ap-
peal, in effect, amount to the final expositors of federal
administrative law within their geographic area. 9
C. ProceduralIssues at the Second Section

The procedural issues at the Second Section tend to revolve
around the tribunal's competency. By statute, the Second Section
exercises a limited competency over cases to correct a violation of
law of either a procedural or substantive nature.40 0 Thus, due process
often depends on what the Second Section determines with regard to
its competency to hear a given case.
1. Competence of the First and Third Sections
While the subject of this study is the Second Section, the juris-
dictional parameters of that Section are more clearly delineated by a
discussion of the proper competency of the other two sections. The
First Section is the supreme tribunal of ordinary jurisdiction in the
Catholic Church. 40 ' Article 122 of Pastor Bonus establishes six
competencies which belong to the First Section.40 2 Two of the six
397. For example, in 1983, the circuit courts issued a total of 5572 published
decisions. See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND
REFORM 69 (1985). There were over 4000 writs of certiorari filed, but the Su-
preme Court heard only approximately 150 cases. See The Supreme Court
1983 Term-Leading Cases, 98 HARV. L. REV. 87, 307 (1984). For a descrip-
tion of the central problems with the Supreme Court's practice and proposed
remedies, see SAMUEL ESTREICHER & JOHN SEXTON, REDEFINING THE
SUPREME COURT'S ROLE, A THEORY OF MANAGING THE FEDERAL JUDICIAL
PROCESS (1986).
398. Consequently, some have argued that there is need for a new national
federal court to sit as an intermediary between the circuit courts and the Su-
preme Court. See, e.g., Thomas E. Baker & Douglas D. McFarland, The Need
for a New National Court, 100 HARV. L. REV. 1400 (1987).
399. See Strauss, supra note 11, at 1112-13.
400. See PASTOR BONUS arts. 45-47.
401. See id. arts. 41-44.
402. See id. art. 122, 1-4'; see also 1983 CODE c.1445, § 1 (containing a
similar, but not identical provision).
November 2000] COMPARISON OFADMINISTRATIVE L4W 147
competencies are contained in Number 1 of Article 122.403 First, the

First Section hears complaints of nullity against the sentences of the
Roman Rota. 4 A complaint of nullity can claim either remediable
or irremediable nullity.40 5 Canon 1620 lists eight reasons why a
sentence is vitiated by irremediable nullity. 40 6 In the case of irreme-
diable nullity, for a trial to be valid, it must be repeated in its en-
tirety. Canon 1622 identifies six reasons for remediable nullity.4 0 7 If
the First Section should declare a sentence of the Roman Rota null,
the case must be remanded to the Rota for the imposition of a new
sentence. 40 8 Second, the First Section entertains petitions of restitu-
tio in integrun against the sentences of the Roman Rota. Paragraph
1 of Canon 1645 permits total reinstatement of a case against a res
judicata sentence when there is clear proof that the sentence is
403. See PASTOR BONUS art. 122, 10.

404. See 1983 CODE c.1444, cc.1628-1640.
405. See id. c.1620, c.1622.
406. A judgment is null with a nullity which cannot be remedied, if.
1' it was given by a judge who was absolutely non-competent;
2' it was given by a person who has no power to judge in the tribunal in
which the case was decided;
30 the judge was compelled by force or grave fear to deliver judgment;
40 the trial took place without the judicial plea mentioned in can. 1501,
or was not brought against some party as respondent;
5* it was given between parties of whom at least one has no right to
stand before the court;,
60 someone acted in another's name without a lawful mandate;
70 the right of defense was denied to one or other party;
80 the controversy has not been even partially decided.
Id. c.1620.
407. A judgment is null with a nullity which is simply remedial if.
10 contrary to the requirements of can. 1425, § 1, it was not given by
the lawful number ofjudges;
20 it does not contain the motives or reason for the decision;
30 it lacks the signatures prescribed by law;
40 it does not contain an indication of the year, month, day and place it
was given;
50 it was founded on a judicial act which is null and whose nullity has
not been remedied in accordance with can. 1619;
60 it was given against a party who, in accordance with can. 1593, § 2,
was lawfully absent.
Id. c.1622.
408. See id. cc.1628-1640, cc.1645-1648.
unjust. 40 9 Paragraph 2 of the same canon recognizes five manifest

injustices upon which reinstatement may be granted.410 It is inter-
esting to note that Number 1 of Article 122 omits the mention of the
phrase "and other recourses," which is contained in the parallel pro-
vision of Canon 1445.411
A third area of the First Section's competency is identified in
Number 2 of Article 122.412 The First Section adjudicates recourses
in cases concerning the status of persons to which cases the Roman
Rota denies a new examination.413 Cases involving the status of per-
sons, especially those pertaining to the separation of spouses, never
become res judicata.414 Number 3 of Article 122 recognizes two
more competencies in the First Section. 415 Fourth, the Section
409. The legal principle of res judicata assures that matters which have been
definitively decided will not be relitigated. It is an ancient principle which
stems from roman law. Cicero, in his famed defense of Sulla, extolled the
principle even though it was, in that instance, not advantageous to his client's
interest See CICERO, Oratiopro Sulla, in CICERO: THE SPEECHES 262, 283
(Louis E. Lord trans., 1937). Thus the well-known axiom states that "it is
more important that what has been adjudicated be lasting than be just" ("magis
expedit res iudicatas esse firmas quam esse iustas").
410. Injustice is not, however, considered clearly established unless:
10 the judgement is so based on evidence which is subsequently shown
to be false, that without this evidence the dispositive part of the judg
ment could not be sustained;
20 documents are subsequently discovered by which new facts
demanding a contrary decision are undoubtedly proven;
30 the judgement was given through the deceit of one party to the harm
of the other;
40 a provision of a law which was not merely procedural was evidently
neglected;
50 the judgement runs counter to a preceeding decision which has
become an adjudged matter.
1983 CODE c.1645, § 2.
411. See id. c.1445, § 1, 10 ("[Com]plaints of nullity, petitions for total rein-
statement and other recourses against rotaljudgements [sic].") (emphasis
added).
412. See PASTOR BONUS art. 122, 20.
413. See id. 1° (stating that the First Section may entertain "complaints of
nullity and petitions for total reinstatement against judgments of the Roman
Rota").
414. See 1983 CODE c.1643.
415. See PASTOR BoNus art. 122, 30 (providing that the First Section may
investigate "exceptions of suspicion and other proceedings against judges of
the Roman Rota arising from the exercise of their functions").
investigates exceptions of suspicion against the judges of the Roman

Rota. While in practice such cases are rare due to the prudence of
Rotal judges, questions of consanguinity or affinity, such as men-
tioned in Canon 1448, would be examples of what pertains to the
fourth competence.41 6 Fifth, the First Section may investigate "other
cases" against Rotal judges in matters pertaining to the exercise of
their office. For example, Canon 1456 prohibits judges from ac-
cepting gifts, and Canon 1457 considers violations of secrecy and the
hearing of cases out of malice or in a negligent manner.4t 7 Finally,
Number 4 of Article 122 confers on the First Section the competence
to decide conflicts of competence between tribunals which are not
subject to the same tribunal of appeal. 4 s This does not necessarily
mean the Roman Rota, but may also refer, for example, to a conflict
between two different tribunals of two different countries.
Article 124 of Pastor Bonus may be said to establish a Third
Section of the Apostolic Signatura, which has four areas of compe-
tence. 41 9 First, Number 1 of Article 124 commissions this Section to
exercise vigilance over the right administration of justice in the
church. 420 In what way is this broad charge to exercise vigilance to
be understood? It is not a police power. Rather, it must be a general
supervision of the administration of justice in the church. Addition-
ally, Number 1 authorizes the Third Section to supervise the work of
procurators and advocates.42 ' Second, in fulfillment of Number 2 of
Article 124, the Third Section is to decide the petitions brought to the
Apostolic See as to whether a case should be heard before the Roman
Rota.422 By the same number and article, the Third Section is
416. In addition to consanguinity and affinity, 1983 CODE c.1448 mentions

conflicts of interest that arise for the judge due to serving as a guardian or
trustee, close friendship, great animosity, and desire for profit.
417. See id. cc.1456-1457.
418. See PASTOR BoNus art. 122, § 4 (providing for the First Section to de-
cide "conflicts of competence between tribunals which are not subject to the
same appellate tribunal").
419. See Grocholewski, supranote 297, at 412-13.
420. See PASTOR BoNus art. 124, 1*("To exercise vigilance over the correct
administration of justice, and, if need be, to censure advocates and procura-
tors.").
421. See id.
422. See id. § 2 ("[T]o deal with petitions presented to the Apostolic See for
obtaining the commission of a case to the Roman Rota or some other favour
competent to decide the petition of other graces relative to the ad-

ministration of justice. 4 3 This provision does not appear in the 1983
Code, and its inclusion in Pastor Bonus may indicate an intention to
correct the omission in the 1983 Code. Third, Number 3 of Article
124 empowers the Third Section of the Apostolic Signatura to extend
the relative competence of inferior tribunals in the church.424 This is
an extension of competence for cases of the first grade. For example,
in the case of a refugee, the Third Section might extend or "proro-
gate" the competence of the domestic tribunal in the host nation to
hear a case technically under the jurisdiction of a tribunal in the
country from which the refugee has fled. The extension of compe-
tence would be particularly warranted in the event that the refugee's
homeland has suppressed the church or refused one of the parties ac-
cess to the process.
The power of extending jurisdiction also applies to cases of ap-
peal. 42 5 A distinction must be drawn between prorogation of com-
petence and Pontifical commission. To start, the Signatura has the
ordinary power to extend competence of an ordinary first instance
tribunal to hear a case in the second instance. 426 This differs some-
what from the approval of designation of a first instance tribunal ac-
cording to 1983 Code, Canon 1438, Number 2.427 In addition, the
Signatura may also extend the competence of an ordinary appeal tri-
bunal to hear a case in the second instance coming from a tribunal
whose cases it normally does not hear.42' This involves relative
relative to the administration of justice.").

423. See id.
424. See id. § 3 ("[T]o prorogate the competence of lower tribunals."). To
"prorogate" competence means to extend or expand it in order for a tribunal to
hear a certain case. Canon law stipulates absolute and relative incompetence.
Relative incompetence results from a territorial defect, and it may be proro-
gated. See 1983 CODE c.1407, § 2. Absolute incompetence results from the
grade of the tribunal, the dignity of the parties, or the quality of the issue, and it
renders the decision of the tribunal invalid. See id. c.1440; see also
LAWRENCE G. WRENN, Book VII, Processes, in THE CODE OF CANON LAW: A
TEXT AND COMMENTARY 945, 952 (James A. Corriden et al. eds., 1985) (dis-
cussing the differences between relative incompetence and absolute incompe-
tence).
425. See 1983 CODE c.1417, § 2.
426. See id. c.1439, § 1.
427. See id. c.1438, § 2.
428. See id. c.1444, § 2.
November 2000] COMPARISON OFADMINISTRATIVE L4W 151
incompetence. Finally, the Signatura has a special faculty from the

Roman Pontiff to grant competence to ordinary tribunals to judge a
case in the third instance in place of the Roman Rota.42 9 This in-
volves a tribunal that is absolutely incompetent by reason of grade.
Pursuant to Article 124, Number 2, the granting of such a Pontifical
commission constitutes a grace.4 0 Fourth, Number 4 of Article 124
authorizes the Third Section to promote and to approve the erection
of interdiocesan tribunals.43 1 Consistent with Regimini Ecclesiae
Universae,the various competencies and duties of the Holy See are
to be distributed throughout the Roman Curia in an appropriate man-
ner. In accord with the doctrine of Lumen Gentium, pursuant to
which the bishop is the prime judge in his diocese, the Signatura
does not erect tribunals.432 Instead, in the language of PastorBonus,
it "promotes and approves" them. 4 33 Certainly, the initiative and co-
operation of the local bishops is presupposed. This Number also 43 4
concerns approving the designation of an appellate-level tribunal.
In light of the four areas of competency, the Third Section is not ac-
tually a tribunal; rather, it is something similar to a ministry or con-
gregation of justice. Its function is not judicial, but administrative in
the broad sense of the term. It is the "Congregation of Justice"
which exercises administrative power in the conduct ofjustice.435
429. See id.

430. See PASTORBONUS art. 124, § 2.
431. See id. § 4 ("[T]o grant its approval to tribunals for appeals reserved the
Holy See, and to promote and approve the erection of interdiocesan tribu-
nals."). The Holy See signifies the jurisdiction of the Pope and the Roman Cu-
ria.
432. See Betti, supra note 37, at 726.
433. See PASTOR BONUS art 124, § 4.
434. See 1983 CODE c.1438, § 2.
435. See Grocholewsld,supra note 297, at 412. Pursuant to Articles 121 and
124 of Pastor Bonus, the right administration of justice in the church permits
the utilization of administrative procedure in certain marriage nullity cases.
See PASTOR BONUS arts. 121, 124; Raymond L. Burke, La proceduraammin-
istrativaper la dichiarazione di nuilit/t del matrimonio, in I PROCEDIMENTI
SPECIALI NEL DIRITTO CANONICO, STUDI GIURIDICI XXVII, at 93 (1992).
2. Competency of the Second Section
a. violation of law
While the 1983 Code of Canon Law defines the object of the
Second Section's competency as an act of administrative power,
Pastor Bonus specifies that the tribunal examine the challenged act to
determine if a violation of law exists.436 With the advent of Pastor
Bonus, the competence of the Second Section was more accurately
defined than it had been in Canon 1445. Section 1 of Article 123 of
Pastor Bonus specifies that the supreme administrative tribunal "ad-
judicates recourses lodged within the peremptory limit of thirty use-
ful days against singular administrative acts whether issued by the
dicasteries of the Roman Curia or approved by them, whenever it is
contended that the impugned act violated some law either in the de-
cision-making process or in the procedure used. 437 Whereas the
1983 Code simply speaks of "contentions legitimately referred" to
the Second Section, the Apostolic Constitution requires that the ad-
law. 438
ministrative act is alleged to have violated the
The language of Pastor Bonus regarding the concept of a viola-
tion of law reflects a certain evolution. 439 Article 106 of Regimini
Ecclesiae Universae permitted recourse from an administrative act
"as often as it is contended that the act itself violates some law." '440
436. This competence had previously been determined in Regimini Ecclesiae

Universae, supra note 295, at 921-22. It was then stated in a 1969 decision of
the Signatura. See JurisprudentiaSupremi Tribunalis SignaturaeApostolicae,
Sectio Altera, I, Decisiones: 6 - De remotione a paroecia, 60 PERIODICA 332
(1971). Sabattani indicates that only the elements that constitute an adminis-
trative act fall within the competence of the Second Section. See Aurelio Sab-
attani, Judicium de legitimitate actuum administrativorum a Signatura Apos-
tolica peractum, 16 lus CANONIcuM 231, 232 (1972). With a somewhat
different focus, Gordon proffers that the so-called "principle of legality" in-
cludes a consideration of the alleged harm or injury to a private person who
brings the recourse against the administrative act. See Ignacio Gordon, S.J.,
De obiectoprimario competentiae 'SectionisAlterius" Supremi TribunalisSig-
naturaeApostolicae, 68 PERIODICA 511, 521 (1979).
437. PASTOR BONus art. 123, § 1.
440. REGIMINI ECCLESIAE UNIVERSAE art. 106 ("quoties contendatur actum
ipsum legem aliquam violasse").
November 2000] COMPARISON OFADMINISTRATIVE LA W 153
In Article 96 of the Normae Speciales, the recourse is allowed "as

often as a violation of law is alleged."'441 Shortly after the introduc-
tion of the concept of the violation of law, the Pontifical Commission
for the Interpretation of the Decrees of the Second Vatican Council
clarified that a violation of law signifies an error in proceeding or in
deciding. 442 Pastor Bonus states that an administrative act may be
challenged before the Apostolic Signatura "as often as it is disputed
as to whether the impugned act may have violated any law in decid-
ing or proceeding." 3 It would seem that the violation of law may
be either procedural or substantive. At the same time, it is clear that
the Second Section does not consider the overall merits of a case. 4 "
In keeping with the concept of conmmunio, the local Ordinary is af-
forded a wide ambit of discretionary power.445 Moreover, the proper
hierarchical superior to the local Ordinary is the competent Di-
castery, and it belongs to the Dicastery to consider questions of
merit." 6 Even in such a consideration, however, the Ordinary who
exercises prudence, and does not act in an arbitrary and capricious
manner, will be upheld." 7
Although Pastor Bonus limits the competence of the Second
Section to the investigation of whether a law has been violated either
in deciding or proceeding, the jurisdictional parameters seem to re-
main broad in scope. The Second Section may review any violation
of law "be it of divine law, natural or positive, be it of ecclesiastical
law, written or custom," committed in the exercise of administrative
power.448
441. NORMAE SPECIALES art. 96 ("quoties allegetur legis violatio").

442. See Pontificia Commissio Decretis Concilii Vaticani, II Interpretandis,
63 AAS 330 nn.3, 4 (1971) ("pro violatione legis intelligi errorem iuris sive in
procedendo sive in decernendo" ("for a violation of law is understood an error
of law whether in proceeding or deciding")); Jos6 M. Pinto Gomez, Verba 'er-
ror iurissive in procedendo sive in decelnendo' in responso Pontificiae Com-
missionisInterpretationis,67 PERIODICA 649 (1978).
443. PASTOR BoNus art 123, § 1 ("quoties contendatur num actus impug-
natus legem aliquam in decernendo vel in procedendo violaverit").
444. The response of the Pontificia Commissio Decretis Conciii Vaticani,
supra note 442, at 330 n.4, clearly states that the merits are not considered.
445. See Matthews, supranote 86, at 150-53.
446. See Sabattani, supra note 436, at 232-33.
447. See id. at 231,242.
448. Grocholewski, supra note 307, at 25.
b. legitimate interestand subjective rights

The broad interpretation of the violation of law seems consistent
with the protection of subjective rights. Various authors have dis-
cussed the relationship between the concept of a violation of law and
of the subjective right of an individual. 449 A subjective right may be
said to be some particular entitlement attaching to an individual
which may be vindicated at law when violated. For example, prior to
dismissal from the religious institute, a member in final vows is enti-
tled to a certain procedural protection.45 ° If the institute dismissed
the member because some aspect of required procedure was ne-
glected, such negligence would constitute a violation of law. 45 ' Dino
Cardinal Staffa seems, in fact, to identify a violation of law with a
violation of some right.452 Eduardo Labandeira concurs, noting that
a challenged administrative act is almost always linked to the viola-
tion of a subjective right.453 The same author holds that it is a ques-
tion of focus as to whether the principal question depends on the le-
gitimacy of some act or on a violation of some right.454
Since Italian law draws a distinction between a subjective right
and a legitimate interest, it has been suggested that the distinction be
introduced into ecclesiastical administrative proceedings. 4 5
449. See, e.g., LABANDEIRA, supra note 20, at 724-45 (discussing the object
of contentious-administrative recourse in the church and subjective rights);
Matthews, supra note 86, at 148-50; Staffa, supra note 119, at 523-24; Hein-
rich Straub, De obiecto primariocompetentiae supremi organismi contentioso-
administrativi,67 PERIODICA 547 (1978).
450. See 1983 CODE cc.694-704.
451. See id. c.696, § 1.
452. See Staffa, supra note 119, at 523 (speaking of"violatio legis seu iuris"
("violation of law or right")). But see Straub, supra note 449, at 553 (arguing
that not every violation of law constitutes a violation of some subjective right).
453. See LABANDEIRA, supranote 20, at 739-45.
454. See id. at 157.
455. See, e.g., GIUSEPPE LOBINA, LA COMPETENZA DEL SUPREMO
TRIBUNALE DELLA SEGNATURA APOSTOLICA CON PARTICOLARE RIFERIMENTO
ALLA 'SECTIo ALTERA' E ALLA PROBLEMATICA RISPETTIVA 104-06 (1971);
Raffaele Coppola, Annotazioni in margine all'interpretazioneautentica sulla
giurisdizionedi legittimiti nel diritto canonico, 85 IL DIRITTO ECCLESIASTICO
381 (1974); Raffaele Coppola, Riflessioni sulla istituzione della Seconda Sezi-
one della Segnatura Apostolica, 43 APOLLINARIS 361 (1970); Arcangelo
Ranaudo, Brevi considerazionisu 'oggetto primario"della competenza spet-
tante alla 'Sectio Altera' della Segnatura Apostolica, 105 MONITOR
November 2000] COMPARISON OFADMINISTRATIVE LAWV 155
Theoretically, a subjective right is understood as "an interest directly

guaranteed by law to an individual, [while] a legitimate interest is de-
fined as 'an individual interest closely connected with a public inter-
est and protected by law only through legal protection .... '" of such
a public interest.456
Under the Italian arrangement, legal rights are
vindicated in the ordinary judicial tribunal, but legitimate interests
must be introduced into the separate administrative system. 457 For
example, a suit for breach of contract by a private individual against
some public organ of the state falls under the jurisdiction of the civil
courts.458 Alternatively, if an individual were to bring an action
against the same public organ on the ground that the individual was
unfairly excluded from a process of competitive bidding in awarding
a contract, then the individual must seek redress in the administrative
45 9
forun
Many experts oppose the introduction of the distinction between
a legitimate interest and a subjective right into the church's jurispru-
dence. 4 0 To start, both in theory and in application the distinction is
somewhat precarious. Where does one draw the line between an in-
dividual's legitimate interest and one's subjective right? Perhaps
more importantly, the distinction does not seem to serve the special
nature and ends of canon law. In ecclesiastical law, all rights of the
faithful, as they are ordered to the salvation of souls, should be pro-
tected. The creation of the Second Section of the Apostolic Signa-
tura, with competence over controversies between private individuals
ECCLESIASTICUS 102 (1980).

456. MAURO CAPPELLETTI ET AL., THE ITALIAN LEGAL SYSTEM 81 (1967)
(quoting ZANOBINI, CORSO DI DIRITO AMMINISTRATIVO 185, 187 (1958-59));
see also Michel Bonnet, De origine distinctionis 'ius-interesse ', 67 PERIODICA
640 (1978).
457. See CAPELLETTI ET AL., supra note 456, at 81.
458. See id.
459. See id. at 81-82.
460. See, e.g., GRAzIAm, supra note 311, at 111-14; Grocholewski, supra
note 307, at 26-28; Gordon, supra note 16, at 349-78; Gordon, supra note 436,
at 503-42; Paolo Moneta, Nova cO1nfiguratioobiectiprimariicompetentiae su-
premi organismicontensioso-administratiivi,67 PERIODICA 566 (1978) (where
he seems to reverse an earlier opinion expressed in I IL CONTROLLO
GIURISDIZIONALE SUGLI ATTI DELL'AUTORITA AMMINISTRATIVA
NELL'ORDINAMENTO CANONICO 245-61 (1973)); Dino Stafth, Giurisdizione
ordinaria e giurisdizione amministraliva, 48 APOLLINARIS 441-47 (1975);
Staffa, supra note 119, at 525-33; Straub, supra note 449, at 547-57.
LOYOLA OF LOS ANGELES LAW REVIEW [V ol. 34:81
and public organs of the church, was not intended to imply that the
rights and interests proper to this forum deserve any less protection
46 1
or attention than those proper to the ordinary judicial forum.
c. merits of the case
Ambiguity remains about what constitutes the merits of the case.
From a comparative perspective, American administrative law draws
distinctions between determinations of law and findings of fact. The
merits of the case typically involve a mix of the issues of law and
fact.462 To determine whether a law has been violated in deciding
would sometimes seem to require that factual issues be examined.
Such an examination seems to lead directly to reflection on the over-
all merits of the case. Three decisions of the Apostolic Signatura,
discussed below, indicate that it is sometimes necessary to examine
the merits of the case in order to determine whether a violation of
law was committed.
In the first case, the cardinal secretary of state exceptionally
granted the special faculty to the Signatura the power to judge the
merits of the case in which a professor had been dismissed from his
position at a Catholic university on the ground that he plagiarized his
course notes.463 The professor had pursued the process of hierarchi-
cal recourse to the level of the Congregation for Catholic Universi- 464
ties and Seminaries, which confirmed the decree of dismissal.
Bringing recourse to the Second Section, the dismissed professor
contended that the administrative decree was both unlawful and un-
just. 465 The Supreme Administrative Tribunal held, first, that the
dismissal violated the law in the way it had been issued and in the le-
gal basis for the dismissal. 466 Second, the tribunal held that the ad-
ministrative act by which the professor was dismissed had been
based on insufficient evidence as to whether plagiarism actually
461. See LABANDEIRA, supra note 20, at 714-15.

462. See STREET & BRAZIER, supra note 187, at 580-82.
463. See Supremum Tribunal Signaturae Apostolicae, Romana, Dimissionis
a munere docendi, 27 Ottobre 1984 - Emmo Ratzinger, Ponente, 96 IL
DIRITTO ECCLESIASTIco 260 (1985) [hereinafter Decision of the Apostolic
Signatura,October 27, 1984].
464. See id. at 263.
465. See id. at 261.
466. See id. at 264-68.
existed and as to whether the professor had been promoted on the ba-
sis of the allegedly plagiarized notes.467 Serving as Ponens in this
exceptional case, Cardinal Joseph Ratzinger, a man not unfamiliar
with the academic world, seemed to transcend the issue of a violation
of law and reached the merits to declare the decision unjust.4 6s Al
though the Signatura declared that a violation of law in deciding ex-
isted, it considered the facts of the case to reach this conclusion.469
The second case involved a dispute between a diocese and a
monastery in a different diocese over the ownership of certain sacred
objects of art.4 70 The issue was whether title to the property had
passed to the diocese when the two monasteries that held the prop-
erty within the diocese became defunct, or to the monastery in the
separate diocese. 47 1 The Congregation for Religious awarded the
property to the monastery. 472 The Apostolic Signatura held that the
Congregation's determination constituted a violation of law. 473 This
determination was based on the merits of the case through an exami-
nation of the relevant canon law, Spanish474civil law, and the original
contract regarding the deposited property.
A third case involved the claim by a Confraternity that a decree
of a diocesan bishop unlawfully removed certain Papal favors
granted to it in 1526.475 The Congregation for the Clergy affirmed
467. See id. at 268-70.

468. For further discussion of the case, see Gianpaolo D. Montini, I! riscar-
cimento del danno provocato dall'atto amministrativo illegillimo e la compe-
tenza del Supremo Tribunale della Segnatura Apostolica, in LA GIUSTIZIA
AMMINISTRATIVA NELLA CHIESA 194 (1991), and Joaquin Llobell, 11 <<peti-
turn>> e la <<causapetendi>> nel ricorso contenzioso-amministrativo can-
onico. Profilisostanzialiriconstruttivialla luce della Cost. Ap. <<PastorBo-
nus>>, 3 IUs ECCLESIAE 146 (1991).
469. See Decision of the Apostolic Signatura, October 27, 1984, supra note
463, at260.
470. See Tribunal Supremo de la Signatura Apostolica (Prot. N. 122230180
C.A. - Legionen), Derechos (Violaci6n de la lev en la decisi6n de un Dicaste-
rio Romano), Sentencia definitiva de 22 de agosto de 1987, 47 REViSTA
ESPAROLA DE DERECHO CAN6NICO 269 (1990) [hereinafter Decision of the
Apostolic Signatura,August 22, 1987].
471. See id. at 269-70.
472. See id. at 270.
473. See id. at 274.
474. See HAYWARD, supra note 3, at 178-79.
475. See Tribunal Supremo de la Signatura Apostolica, Derechos (Violaci6n
the bishop's decree.476 To decide in the Confraternity's favor, the

Second Section conducted a full inquiry into the intricate historical
question of the case. Yet, in announcing its decision the Apostolic
Signatura stated that it had not reached the merits of the case, but had
only decided whether the Congregation had committed a violation of
law in proceeding or deciding. 477 The three cases indicate that upon
occasion such a determination cannot be reached without a consid-
eration of the merits of a particular case.47 8
d. damages
Pastor Bonus expanded the competency of the Apostolic Signa-
tura by permitting it to award damages. 479 Section 2 of Article 123
of Pastor Bonus determines when damages may be awarded in the
Second Section: "In these cases, apart from the judgment concerning
legitimacy, it is also able to decide, if the petitioner requests it, con-
cerning the reparation of damages inflicted through an illegitimate
act.",4 ' The section is consistent with the provision of damages in
Canon 128.48 1 The canon requires that the damages, which are to be
compensated for, be unlawfully caused.482 This follows from the
fundamental moral principle that one must make restitution for one's
unjust actions.48 3 It has been argued that mere negligence in the
placement of an administrative act will not suffice. 484 Rather, in
de la ley en la decisi6n de un DicasterioRomano), Sentencia de 29 de Sep-
tiembre de 1989 - Alphonsus Stickler Ponens, 48 REVISTA ESPAi&OLA DE
DERECHO CAN6NICO 307-23 (1991) [hereinafter Decision of the Apostolic
Signatura,September 29, 1989].
476. See id. at 307-08.
477. See id. at 319.
478. See HAYWARD, supra note 3, at 170-80; LABANDEIRA, supra note 20, at
729-34.
480. Id. For a discussion of damages in the 1983 Code in general, see Pio
Ciprotti, 1l risarcimentodel danno nel progetto di riforma del Codice di Diritto
Canonico, 37 EPHEMERIDES IURIS CANONICI 175 (1981).
481. 1983 CODE c.128.
482. See id.
483. See Richard A. Hill, S.J., Title V1I-Juridic Acts, in THE CODE OF
CANON LAW: A TEXT AND COMMENTARY 92 (James A. Corriden et al. eds.,
1985).
484. See Jozef Krukowski, Responsibilityfor Damage Resultingfrom Illegal
Administrative Acts in the Code of Canon Law of 1983, in 1 LE NOUVEAU
CODE DE DROIT CANONIQUE/THE NEW CODE OF CANON LAW ACTES DU V 0
November 2000] COMPARISON OFADMINISTRATI"E LAW 159
order to merit the award of damages, the administrative act must

have been motivated by some type of malicious intent to harm. 8 s
Neither Canon 128 nor Article 123 of Pastor Bonus contain any such
requirement. To the contrary, they simply posit the possibility of
damages as a result of the wrongful administrative act. 4 6 The dam-
ages contemplated may apparently be money damages or some other
type of restitution. 487 The question of the kind of damages to be
awarded is complicated in the canonical order in which the injury to
be compensated involves a moral evil such as damage to an individ-
ual's reputation as a result of an unlawfully posited administrative
act.488 Clarification may be desirable through future norms.48 9
e. other competencies
Finally, Section 3 of Article 124 of Pastor Bonus entrusts the
Second Section with competence: "[the Second Section] also han-
dles other administrative controversies, which are referred to it by
the Roman Pontiff or a Dicastery of the Roman Curia, and also con-
flicts regarding competence between the same Dicasteries." 490 Just
as the First Section, the supreme tribunal of ordinary jurisdiction, re-
solves conflicts of competence between inferior tribunals, the Second
CONGRtS INTERNATIONAL DE DROIT CANONIQUE/PROCEEDINGS OF THE 5TH

INTERNATIONAL CONGRESS OF CANON LAW 231-42 (Michel Theriault & Jean
Thorn eds., 1986).
485. See id.
486. See 1983 CODE c.128; PASTORBONUS art. 123.
487. See Grocholewski, supra note 297, at 409; see also Ignacio Gordon,
S.J., La responsabilita dell'aniministrazione publica ecclesiastica, 98
MONTORECCLESIASTICus 384,419 (1973).
488. Prior to the promulgation of Pastor Bonus, a somewhat unusual case
raised the question of damages. See Decision of the Apostolic Signatura, Oc-
tober 27, 1984, supra note 463, at 491. After deciding that the petitioner, a
professor, had been unlawfully and unjustly dismissed from his position at a
Catholic university, the Apostolic Signatura determined that the petitioner was
entitled to damages and further held that a specific financial sum should be
determined by the appropriate office of the Roman Curia. See id. at 270. Sub-
sequently, the College of Cardinals informed the Apostolic Signatura that the
determination of the amount of damages belonged to the Signatura itself. See
Decree of the Apostolic Signatura of June 1, 1985, 96 IL DiUrTTo
ECCLESIASTICO 261 (1985).
490. PASTOR BoNus art. 123, §3.
Section, the supreme administrative tribunal, must decide conflicts of

competency between Dicasteries of the Roman Curia. 49 1
D. ProceduralIssues at the U.S. Supreme Court
Unlike the contentious-administrative process at the Apostolic
Signatura, judicial review of an administrative decision at the Su-
preme Court does not involve a specialized section of the tribunal.
Rather, the Supreme Court hears an administrative case in the same
manner as it hears any other appeal. Judicial review of administra-
tive decisions raises procedural issues regarding standing, timing,
fundamental due process, and competency.
1. Standing requirements
A person must have "standing" to challenge an administrative
decision in a court of law.492 The standing requirement finds its ba-
sis in both the Constitution and in statute.493 Article III, Section 2 of
the Constitution limits the federal judicial power to "cases" and
controversies. 494 A person does not present an Article III case or
controversy unless the person has a direct personal interest in the
administrative act which he or she challenges. 49' A reviewing court
will not entertain administrative actions in the abstract.496 Instead, a
person seeking judicial review must show a personal injury, 497 from
which he has suffered an adverse affect and which injury is "fairly
traceable" to the administrative act, 498 and for which the relief sought
shall likely remedy the harm caused by the administrative act.499
In addition to the constitutional basis of the standing require-
ment, Congress may create standing in a person or class where it
491. See id.

492. See Ass'n of Data Processing Serv. Org. v. Camp, 397 U.S. 150, 151
(1970).
493. See U.S. CONST. art. III, § 2; 5 U.S.C. § 702 (1994).
494. U.S. CONsT. art. III, § 2, cl. 1.
495. See BERNARD SCHwARTZ, ADMINISTRATIVE LAW 496-97 (3d ed.
1991).
496. Justice Oliver Wendell Holmes once referred to such an action as "a
mere declaration in the air." Giles v. Harris, 189 U.S. 475, 486 (1903).
497. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,38 (1976).
498. Watt v. Energy Action Educ. Found., 454 U.S. 151, 161 (1981).
499. See Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464,472 (1982).
November 2000] COMPARISON OFADMNSTRATIVE L4 W 161
would not ordinarily exist.500 The APA provides that a person "ad-
versely affected or aggrieved by agency action within the meaning of
the relevant statute" may obtain judicial review:.0 The following
case is an illustration of such standing concerns.
The Supreme Court, in Association of Data ProcessingSertice
Organizations, Inc. v. Camp,50 2 upheld the right of competitors to
challenge administrative actions that have an adverse effect on the
competitive market. 0 3 The Court reduced the law of standing to two
questions: (1) has the complaint alleged an "injury in fact" 504 ; and
(2) is "the interest sought to be protected by the complainant argua-
bly within the zone of interests to be protected or regulated by the
statute or constitutional guarantee in question." 50 5 In recent years,
Congress has relied on its statutory power to expand the limits of the
standing requirement. Individuals and organizations with environ-
mental complaints, for example, may often bring an action for review
on the basis of aesthetic concern.
a. taxpayer standing
An early decision of the Supreme Court held that the interest of
a federal taxpayer was "[too] remote" to establish standing.50 7 In a
1968 case, Flastv. Cohen,"0 8 a taxpayer was permitted to challenge a
federal appropriations and spending measure on the ground that the
taxpayer had a "personal stake in the outcome." 5 9 The Flast Court
promulgated a two-pronged test with which to evaluate the nexus
between a taxpayer and the claim sought to be adjudicated. 10 First,
500. See TRIBE, supra note 7, at 112.

501. 5 U.S.C. § 702.
502. 397 U.S. 150 (1970).
503. See id. at 157.
504. Id. at 152.
505. Id. at 153.
506. See National Environmental Policy Act of 1969, Pub. L. No. 91-190,
83 Stat 852 (1970); see also Sierra Club v. Morton, 405 U.S. 727, 734-35
(1972) (holding that failure to allege a concrete injury, including an aesthetic
injury, to it or its members resulted in a lack of standing for the Sierra Club).
507. See Frothinghamv. Mellon, 262 U.S. 447,487 (1923).
508. 392 U.S. 83 (1968).
509. Id. at 99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
510. See id. at 102.
the challenged administrative action must be based on the govern-

ment's power to tax and spend for the general welfare. Second, the
action must be challenged as a specific constitutional limitation on
the taxing and spending power.51' Several more recent cases suggest
that the Court will not always apply the Flasttest liberally. The Su-
preme Court held in Valley Forge Christian College v. Americans
United5 12 that taxpayers did not have standing to challenge an agency
13
action that gave an unneeded federal building to a religious school'
Likewise, in United States v. Richardson,514 the Court refused to rec-
ognize the standing of taxpayers to challenge a federal statute, which
granted secrecy to certain expenditures incurred by the Central Intel-
ligence Agency. 51 5
b. zone of interests
The Supreme Court has interpreted section 702 of the APA to
reach the limits of Article III of the Constitution.' 16 The section
permits any person who can meet the constitutional requirements of
injury in fact, causation, and remediability to sue.517 Nonetheless,
the words "within the meaning of a relevant statute" impose a pru-
dential requirement that the complainant fall within the "zone of in-
terests" protected or regulated by the statute that the complainant al-
leges has been violated.5" 8
Consistent with its holding in Flast, the Supreme Court, in
Clarke v. Securities Industry Ass'n,5" 9 allowed standing to a trade as-
sociation to challenge an agency action that had the effect of relaxing
statutory restrictions in the marketplace.52 0 The Court held that any
person aggrieved by an agency action has standing, if an injury in
fact has been alleged, and if that injury touches on the zone of inter-
ests to be protected by the statute or constitutional guarantee in
511. See id. at 102-03.

512. 454 U.S. 464 (1982).
513. See id. at 486-87.
514. 418 U.S. 166 (1974).
515. See id.
516. See 5 U.S.C. § 702.
517. See id.
518. Barlow v. Collins, 397 U.S. 159, 164-65, 168 (1970).
519. 479 U.S. 388 (1987).
520. See id.
question.52 ' Moreover, the Court instructed that in applying the zone
of interests test, courts should broadly interpret the relevant statute so
that the class of persons who may challenge an agency action is not
unduly restricted.122 A post-Clarke decision, however, indicates that
the Supreme Court has decided to apply the zone of interests test
more strictly. In Air Courier Conference v. American Postal Work-
ers Union,523 the Court refused to grant standing to the postal work-
ers union that wished to challenge the decision of the post office to
allow competition by private interests in certain areas of the postal
service.5 24 The union maintained that by forsaking its monopoly
over postal services, the post office caused an injury to the union
members since the post office would need to employ fewer work-
ers.525 The Court held that because Congress, when it granted a mo-
nopoly to the postal service, had not intended to protect jobs of
postal workers, the union's claim fell outside the zone of interest
protected by the statute.526
2. Timing ofjudicial review
Even if a party has met standing requirements, one who comes
into federal court seeking a remedy against some exercise of admin-
istrative power will find the matter dismissed if the petition for rem-
edy has been brought at the wrong time.5 27 Two complementary
doctrines, exhaustion and ripeness, are designed to prevent
52
ineffi-
cient judicial intervention in the administrative process. 8
a. exhaustion requir'ement
If judicial review is sought while an agency administrative pro-
ceeding is still underway, a federal court will dismiss the action on
the ground that the plaintiff has failed to exhaust the available ad-
521. See id. at401-03.

522. See id. at 399-400.
523. 498 U.S. 517 (1991).
524. See id.
525. See id. at 527-28.
526. See id. at 530.
527. See 5 U.S.C. § 704.
528. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967); Myers v.
Bethlehem, 303 U.S. 41, 50-51 (1938).
LOYOLA OFLOS ANGELES L4W REVIEW [Vol. 34:81
ministrative remedies. 29 The APA states that federal review is

available after "final agency action, for which there is no other ade-
quate remedy."5 30 In a classic case on the exhaustion requirement,
Myers v. Bethlehem Shipbuilding Corp.,53' the Supreme Court ruled
that a company charged with unfair labor practices had to exhaust its
remedies with the National Labor Relations Board (NLRB) prior to
judicial review, despite the company's claim that to participate in 53an2
administrative hearing would cause irreparable financial harm.
The Court has recognized some exceptions to the exhaustion re-
quirement, such as a claim that an agency lacks jurisdiction over the
matter at issue,533 or that an administrative remedy is plainly inade-
quate to the injury alleged.534 On the whole, however, the Court has
been slow to create exceptions and has striven to maintain the doc-
trine.5 35 Pursuant to the exhaustion doctrine, an individual must pur-
sue an appeal if it is available within the agency structure prior to
filing suit in federal court.536 Typically, the decision of an AL must
first be appealed to the agency head or director before a federal court
will entertain it.
b. ripenessrequirement
The concept of exhaustion needs to be distinguished from that of
judicial ripeness. The exhaustion doctrine emphasizes the position of
the party seeking review. Essentially, the doctrine asks whether the
party is seeking to circumvent administrative review, or whether the
dictates of the matter in controversy require immediate judicial at-
tention. In contrast, the ripeness requirement is concerned primarily
with the ability of the court to resolve an issue without further deter-
mination by the administrative agency. For example, an issue might
be ripe for judicial review because further factual development by
529. SeeAbbott Labs., 387 U.S. at 149; Myers, 303 U.S. at 50.
530. 5 U.S.C. § 704.
531. 303 U.S. 41 (1938).
532. See id. at 47.
533. See Leedomv. Kyne, 358 U.S. 184, 189-90 (1958).
534. See Coit Indep. Joint Venture v. Fed. Sav. & Loan Ins. Corp., 489 U.S.
561, 587 (1989).
535. See FTC v. Standard Oil Co., 449 U.S. 232 (1980).
536. See id. at 243.
the agency is unnecessary.5 37 Thus, although the concept of exhaus-

tion overlaps somewhat with that of ripeness, the exhaustion re-
quirement is procedural in nature, while the ripeness requirement re-
flects more prudential substantive judgments by the court.
3. Fundamental due process
a. notice and the opportunity to be heard

The Fifth and Fourteenth Amendments to the United States
Constitution provide that the federal and state governments shall not
deprive a person of "life, liberty or property without due process of
law." 53 As Justice Felix Frankfurter observed, the notion of funda-
mental due process finds its roots in the very origins of the American
law.5 39 In the development of the American legal tradition, the prin-
ciple was considered to be one of natural justice and universal obli-
gation ultimately rooted in the divine law. 540 Thus, it is an old es-
tablished principle of the law that "a party is not to suffer in person
or in purse without an opportunity of being heard." 5 4 ' In the words
of the Supreme Court, the "elementary and fundamental requirement
537. See Abbott Labs., 387 U.S. at 148-49 (finding that the question at issue
turned entirely on congressional intent, and both parties stipulated agency
findings were unnecessary); Toilet Goods Ass'n v. Gardner, 387 U.S. 158
(1967) (finding that further fact-finding by the agency was essential prior to
judicial review).
538. U.S. CONST. amends. V, XIV; see JERRY L. MASHAWv, DUE PRocEss IN
THE ADMINIsTRATIvE STATE (1985); BERNARD SCmVARTZ & H.W.R. VADE,
LEGAL CONTROL OF GOvERNMENT: ADMINISTRATIVE LAW IN BRITAIN AND
THE UNrrED STATES 23 (1972); Todd D. Rakoff, Brock v. Roadway Express,
Inc., and the New Law ofRegulatory Due Process, 1987 SUP. CT. REV. 157.
539. See Caritativo v. California, 357 U.S. 549, 558 (1958) (Frankfurter, J.,
dissenting) ("Audi alterampartem--hearthe other side!-a demand made in-
sistently through the centuries, is now a command, spoken with the voice of
the Due Process Clause."); see also In re Andrea B., 405 N.Y.S.2d 977, 981
(Fam.Ct. 1978) ("When we speak of audi alteram partem-hear the other
side-we tap fundamental precepts that are rooted deep in American legal
history.").
540. See Rex v. Univ. of Cambridge, 93 Eng. Rep. 698, 704 (K.B. 1723)
("[E]ven God himself did not pass sentence upon Adam, before he was called
upon to make his defence. Adam (says God) where art thou? Hast thou not
eaten of the tree, whereof I commanded thee that thou shouldst not eat?"
(quoting Genesis 3:9-11)).
541. Painter v. Liverpool Gas Co., 111 Eng. Rep. 478, 484 (K.B. 1836).
of due process in any proceeding which is to be accorded finality is

notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections. 542 Essentially, fundamental
or procedural due process in the American legal system543 constitutes
the requirement of notice and the opportunity to be heard.
b. legislative versus adjudicatoryfunctions

Within the context of American administrative justice, a funda-
mental distinction is drawn between rulemaking and adjudication for
the purposes of due process, or to put it another way, between the
legislative and judicial functions exercised by administrative agen-
cies. The distinction is evident from a comparison of two early
cases, Londoner v. Denver544 and Bi-Metallic Investment Co. v. State
Board of Equalization of Colorado.545 In Londoner, the agency had
ordered the paving of streets and assessed the cost upon abutting land
owners in proportion to the amount of property they owned.5 46 The
Supreme Court held that "due process of law requires that, at some
stage of the proceedings, before the tax becomes irrevocably fixed,
the taxpayer shall have an opportunity to be heard. ' 547 Bi-Metallic
involved a decision by the State Board of Equalization to increase
the assessed value of all property by forty percent. The Supreme
Court held that no hearing was necessary prior to the promulgation
of the general rule. In writing for the majority in Bi-Metallic, Justice
Holmes distinguished it from Londoner on the ground that in Lon-
doner "[a] relatively small number of persons was concerned, who
were exceptionally affected, in each case upon individual grounds,"
while Bi-Metallic dealt "with the principle
548
upon which all the as-
sessments in a county had been laid.,
542. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
543. See SCHWARTZ & WADE, supra note 538, at 23; see also Joint Anti-
Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 178 (1951) (Douglas, J.,
concurring) ("Notice and opportunity to be heard are fundamental to due proc-
ess of law.").
544. 210 U.S. 373 (1908).
545. 239 U.S. 441 (1915).
546. See Londoner, 210 U.S. at 375-76.
547. Id. at 385.
548. Bi-Metallic, 239 U.S. at 446.
November 2000] COMPARISON OFADAMNSTRATIiE LAW 167
Thus, in Londoner, the agency act involved quasi-judicial func-

tions in adjudicating a claim that an individual taxpayer had been
unjustly assessed. 549 By contrast, Bi-Metallic involved the agency in
a quasi-legislative function, in which the agency undertook the
promulgation of a general rule.55 0 To paraphrase Justice Holmes: If
the results in this case had been reached as it might have been by the
state legislature passing a new tax law, no one would suggest that
due process was violated unless every person affected had been al-
lowed the opportunity to be heard.55 1 The crux of the distinction
seems to be whether the administrative action is based on a matter of
general policy or on individual grounds. The distinction between
legislative and adjudicative functions in the exercise of administra-
tive power has been criticized by authors who consider the difference
to be more conceptual than real 5 5 2 Notwithstanding the criticism,
the Supreme Court, in United States v. Florida East Coast Rail-
way, 5 53 expressly followed the distinction to determine when due
process must be provided. 54 When administrative action involves an
adjudicatory function, in contrast to a legislative function, which
could deprive a person555
of liberty or property, the Constitution re-
quires due process.
c. extent of due process

Even if the administrative action falls under the constitutional
guarantee of due process, it does not follow that a party must be
549. See Londoner,210 U.S. at383-84.

550. See Bi-Metallic, 239 U.S. at 441-42.
551. See id. at444.
552. See Barry B. Boyer, Alternatives to Administrative Trial-Type Hearings
for Resolving Complex Scientific, Economic, and Social Issues, 71 MICH. L.
REv. 11, 115 (1972); Brice McAdoo Clagett, Informal Action-Adjudication-
Rulemaking: Some Recent Developments in FederalAdministrative Law, 1971
DUKE L.J. 51, 78; Nathaniel L. Nathanson, Davis, Administrative Law Trea-
tise, 70 YALE L.J. 1210, 1211 (1961) (book review).
553. 410 U.S. 224 (1973).
554. See id. at 245; see also Phila. Co. v. SEC, 175 F.2d 808, 818 (D.C. Cir.
1948), vacated as moot, 337 U.S. 901 (1949) (holding that the SEC could not
circumvent the hearing requirement by making a rule that applied only to one
company).
555. See 5 U.S.C. § 556 (1995) (requiring a hearing in certain rulemaking
situations).
LOYOLA OFLOS ANGELES LA WR VIEW [Vol. 34:81
afforded a trial-type hearing. Circuit Judge Henry Friendly culled

the elements which constitute the panoply of due process. They in-
clude the right to: (1) have an unbiased tribunal; (2) receive notice
of the proposed administrative action and the grounds asserted for it;
(3) present arguments against the proposed administrative action; (4)
present evidence and to call witnesses; (5) know opposing evidence
prior to the hearing; (6) cross-examine adverse witnesses; (7) receive
a decision based exclusively on the evidence; (8) be represented by
counsel; (9) have the tribunal compile a formal record; (10) receive a
written statement of the findings of fact and reasons upon which the 56
decision is based; (11) public attendance; and (12) judicial review.
Although the APA requires a full trial-type hearing in certain cir-
cumstances, the Supreme Court has interpreted the Constitution to
guarantee only prior notice and the opportunity to be heard in the
vast majority of administrative adjudications.5 57 Supreme Court
precedent discloses only a few standards by which to determine the
extent of the process that is due. 558 Indeed, the Court has plainly
stated, "due process is flexible and calls for such procedural protec-
tions as the particular situation demands." 559
i. deprivation of liberty: deportation

It is the normal practice for an ALJ to preside over an adminis-
trative adjudication. The APA, however, permits "the conduct of
specified classes of proceedings ... by or before boards or other em-
ployees specially provided for by or designated under statute." 560 In
the 1950 case, Wong Yang Sung v. McGrath,56' the Supreme Court
considered the use of this so-called "saving provision" by the Immi-
56
gration and Naturalization Service (INS) in deportation hearings. 1
Although the INS had provided by its own regulation that immigrant
inspectors should preside at deportation hearings, the Supreme Court
held that the INS procedure did not fall under the APA saving
556. See Henry J. Friendly, Some Kind of Hearing,123 U. PA. L. REV. 1267,
1279-95 (1975).
557. See 5 U.S.C. § 556.
558. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
559. Id. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471,481 (1972)).
560. 5 U.S.C. § 556(b).
561. 339 U.S. 33 (1950).
562. See id.
provision because it was not a statute authorized by Congress.5 63 Re-

sponding to the Court's decision in Wong, Congress passed the Im-
migration and Nationality Act of 1952,564 which provided that the
INS could appoint special inquiry officers rather than ALJs to adju-
dicate deportation hearings. Of more long-lasting significance in the
Wong decision was the Supreme Court's determination that deporta-
tion constituted a deprivation of liberty which invoked the protection
of the due process guarantee. 65
ii. deprivation of property: welfare
In Goldberg v. Kelly,566 the Supreme Court considered the ques-
tion of whether the state of New York could withdraw federally-
funded welfare benefits from a recipient without providing a trial-
type hearing.5 67 Conceding that the welfare benefits were an "enti-
tlement" which fell under the Due Process Clause's deprivation of
property, the state was willing to provide a welfare recipient the op-
portunity for consultation with an agency officer and submission of
written views prior to suspension of the benefits.565 In its fullest ap-
plication of due process guarantees to an act of administrative power,
the Supreme Court ruled that the removal of 5the
69
entitlement required
full protection under the Due Process Clause.
iii. balancing the interests
In contrast to its 1970 holding in Goldberg, more recently the
Supreme Court has tended to restrict the right to full procedural pro-
tection in cases alleging an injury caused by some administrative
act. 570 Only five years following Goldberg, the Court held in
Mathews v. Eldridge571 that federal disability benefits could be cut
563. See id. at 52-53.

564. Pub. L. No. 82-414, § 242(b), 66 Stat. 209 (1952) (codified as amended
at 8 U.S.C. § 1252(b) (1994)). These special inquiry officers are often called
immigration judges.
565. See Wong, 339 U.S. at 50-51.
566. 397 U.S. 254 (1970).
567. See id.
568. See id. at 254-55, 261-62, 268.
569. See id. at 267-71.
570. See Matthews v. Eldridge, 424 U.S. 319, 349 (1974).
571. 434 U.S. 319 (1974).
off without a prior hearing.172 Forsaking an absolute rule, the Court

set forth a balancing test to determine the amount of procedure to
which an aggrieved person was entitled under the Due Process
Clause:
[D]ue process generally requires consideration of three dis-
tinct factors: First, the private interest that will be affected
by the official action; second, the risk of an erroneous dep-
rivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute proce-
dural safeguards; and finally, the Government's interest, in-
cluding the function involved and the fiscal and administra-
tive burdens that the additional
5 73
or substitute procedural
requirement would entail.
Clearly, the balancing test affords reviewing courts a great amount of
leeway in determining whether an individual was afforded the requi-
site due process in a given situation. It has been suggested, in fact,
that the Eldridgetest applied to the facts of Goldberg could have re-
quired a different result.574
Perhaps, the most persuasive reason in support of the Supreme
Court's curtailment of the extent of due process is a pragmatic one.
In the words of Judge Friendly,
if all the safeguards of the Administrative Procedure Act
were to be applied to the denial, withdrawal or curtailment
of welfare, medical, and unemployment payments, and
other benefits.., the United States would be buried under
an avalanche of paper... if575indeed enough reporters to type
the records could be found.
Precursing the decision in Eldridge, the Judge went on to comment
that "[i]f due process is interpreted as a mechanical yardstick, unal-
terable regardless of time, place, and circumstances, it may make
government unworkable. '' 576 He concluded that the "Constitution
572. Seeid. at319.

573. Goldberg, 397 U.S. at 335. The test has been followed in subsequent
cases. See United States v. Raddatz, 447 U.S. 667, 677 (1980).
574. See SCHWARTZ, supra note 495, at 276-77.
575. Henry J. Friendly, Forewordto SCHWARTZ & WADE, supra note 538, at
Xviii.
576. Id. at xix.
November 2000] COMPARISON OFADMINISRTITE LAW 171
577
does not require full judicialization in every conceivable case."
For the vast majority of challenged administrative adjudications, the
Supreme Court prescribes only notice and the opportunity to be
heard.
4. Subject-matter jurisdiction
Similar to the contentious-administrative process in the church,
the judicial review of an administrative act by a federal court de-
pends on legislative authorization. The first question of competency
is whether the court possesses subject-matter jurisdiction over the
particular dispute.5 78 A second question concerns the scope of the
court's reviewing power. 79 Whether or not a federal court possesses
jurisdiction over the subject matter of a dispute in order to exercise
judicial review of an administrative action depends on statutory
authorization and sovereign immunity.58s Additionally, the exhaus-
tion and standing requirements must be met prior to judicial review
in a federal court.
a. statutory authorization
The appellate jurisdiction of the federal courts is entirely statu-
tory, and without authorization from the Congress, a federal court
may not review an exercise of administrative power.5"8 Three possi-
bilities exist. First, pursuant to the APA, if Congress has established
a "special statutory review proceeding relevant to the subject mat-
ter," the party files a petition in the court specified by the statute.58s2
This first possibility is generally referred to as "statutory review." 1
Second, the APA stipulates that if Congress has omitted to specify
577. Id.
578. See U.S. CONST. art. III, §2.
579. See generally SCMVARTZ & WADE, supra note 538, at 226-40 (dis-
cussing scope ofjudicial review as limited to four main issues: fact, law, pro-
cedure, and discretion).
580. See id.
581. See STRAUSS, supra note 80, at 740. It should be noted that in no case
does the APA create federal jurisdiction. Sections 702 and 703 of the APA,
rather, serve as guidelines. See 5 U.S.C. §§ 702-703 (1994); see also Califano
v. Sanders, 430 U.S. 99 (1977) (holding that the APA does not constitute an
implied grant of subject-matter jurisdiction to reviev agency action).
582. 5 U.S.C. §703.
583. Id.
jurisdiction, an aggrieved party may employ "any applicable form of

legal action" in a "court of competent jurisdiction."'5 84 This second
possibility is known as "nonstatutory review," although as will be
shortly discussed, the designation is somewhat misleading since the
general federal jurisdiction statute applies. 85 Third, if Congress ex-
pressly precludes judicial review in the relevant statute, courts are
bound to follow such expressed5 8preclusion
6
as long as the preclusion
comports with the Constitution.
Most statutes creating federal agencies indicate the procedure
for obtaining judicial review of agency decisions.5 87 For the large
regulatory agencies, this is usually by appeal to the courts of appeal,
often to the District of Columbia Circuit, and sometimes by an action
in federal district court. 88 In all cases, the Supreme Court is the fi-
nal judge of an appeal from an exercise of administrative power.5 89
Once Congress has established statutory review, the review of the
administrative act must be brought in the specified court and proce-
dure. 590
The second possibility when one looks to the governing statute
to determine what Congress has provided on the availability of judi-
cial review is statutory silence. Even when Congress has not ex-
pressly provided for judicial review, the Supreme Court has not in-
terpreted the absence of statutory authority to preclude review. 59 ' In
Stark v. Wickard, several producers of milk brought an action against
the decision of the secretary of agriculture to fix milk prices in the
Boston area. 92 The milk producers claimed in federal district court
that the exercise of administrative power was beyond the power
delegated to the secretary.5 93 The district court dismissed the milk
producers' complaint on the ground that judicial review was not
584. Id.
585. See id.
586. See id. § 704.
587. See Whitney Nat'l Bank v. Bank of New Orleans, 379 U.S. 411, 411-12
(1965).
588. See id.
589. See id. at412.
590. See id. at419.
591. See Starkv.Wickard, 321 U.S. 288, 319 (1944).
592. See id. at 296-99.
593. See id. at 289.
November 2000] COMPARISON OFADMINISTRATVE LAW 173
available in the absence of expressed statutory provision.5 94 The

Court of Appeals for the District of Columbia Circuit affirmed.5 95
The Supreme Court reversed the lower court's decision.5 96 The
Court held that the absence of expressed statutory authority by597Con-
gress does not preclude judicial review of an administrative act.
Writing for the majority in Stark, Justice Reed reasoned that
"the silence of Congress as to judicial review is ... not to be con-
strued as a denial of authority to the aggrieved person to seek appro-
priate relief in the federal courts in the exercise of their general juris-
diction." 598 The exercise of the federal court's general jurisdiction
pursuant to federal law applied to administrative action for several
reasons. 599 First, to preclude judicial review would be to leave an
aggrieved individual in the position of having no recourse against an
unjust or illegal administrative act since there is no forum other than
the courts to hear the complaint.600 Moreover, pursuant to the "ultra
vires" doctrine, an agency power is circumscribed by the authority
granted to the agency by statute.6 0 When an agency acts beyond the
parameters of statutory authority, the courts may properly review an
administrative act to protect an individual interest against an agency
60 2
excess.
In a dissenting opinion, Justice Felix Frankfurter argued that in
the absence of an expressed provision for judicial review, the federal
courts should not entertain complaints brought by individuals against
agency action. 60 3 He argued, "[t]here is no such thing as a common
law ofjudicial review .... ,4 According to Justice Frankfurter, for
the federal courts to rely on the general jurisdiction to hear petitions
of remedy from administrative acts amounted to the judicial creation
594. See id.

595. See Stark v.Wickard, 136 F.2d 786, 789 (D.C. Cir. 1943).
596. See Stark-, 321 U.S. at 311.
597. See id. at 308.
598. Id. at309.
599. See id. at 309-10.
600. See id. at 309.
601. See id.
602. See id. at 310.
603. See id. at 314-19 (Frankfurter, J., dissenting).
604. Id. at 312 (Frankfurter, J., dissenting).
LOYOLA OFLOSANGELES LAWRE ViEW V 34:81
[Vol.
of its own jurisdiction.6 0 5 This view, however, has been rejected

since it suggests that individuals aggrieved by administrative acts are
powerless to seek a remedy unless Congress expressly authorizes
606
it.
The third possibility is that Congress has included a provision in
the relevant statute which precludes judicial review. 7 The Immi-
gration and Nationality Act, for example, states that the decisions of
the INS in deportation cases "shall be final., 60 8 In Shaughnessy v.
Pedreiro,0 9 the Supreme Court interpreted "the ambiguous word 'fi-
nal' in the 1952 Immigration Act as referring to the finality in ad-
ministrative procedure rather than as cutting off the right to judicial
review in whole or in part.,,610 To bolster its interpretation, the Court
noted that under the APA "[a] person suffering a legal wrong be-
cause of agency action, or adversely affected or aggrieved ... is en-
titled to judicial review thereof. 61 1 Thus, in Shaughnessy, the Su-
preme Court afforded the deported alien the right to judicial review
61 2
of the INS decision to deport him.
Consistent with the Shaughnessy approach, the Supreme Court
has narrowly construed statutory preclusion provisions so as to es-
tablish a presumption of reviewability.613 The presumption is rebut-
ted only when clear and convincing evidence demonstrates congres-
sional intent to preclude judicial review of a particular agency
action. 4 In Traynor v. Turnage,615 the Court held that review was

607. See United States v. Erika, 456 U.S. 201 (1982) (upholding a statute
which absolutely precluded judicial review of exercises of administrative
power in cases concerning certain government benefits).
608. 8 U.S.C. § 1252(b) (1994).
609. 349 U.S. 48 (1955).
610. Id. at 51.
611. 5 U.S.C. § 702 (1994).
612. See Shaughnessy, 349 U.S. at 51-52.
613. See, e.g., Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 799 (1985)
(holding that administrative agency's decision under the Civil Service Retire-
ment Act was reviewable).
614. See Abbott Labs. v. Gardner, 387 U.S. 136, 136 (1967) (holding that
judicial review of administrative regulations was not prohibited by Federal
Food, Drug, and Cosmetic Act); see also Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 680-81 (1986) (holding that Congress did not intend
to preclude judicial review of the amount of benefits payable under Part B of
November 2000] COMPARISON OFADMIJSTRATIVE LAW 175
not precluded even when a statute precluded judicial review of the

decisions of the Veterans Administration (VA) "on any question of
law or fact under any law administered by the Veterans' Administra-
tion providing benefits for veterans .... s6 There, an alcoholic vet-
eran sought to reverse a decision of the VA, which denied him reha-
bilitation. 17 Despite the fact that the statute provided that such VA
decisions were "final and conclusive and no... court of the United
States shall have power or jurisdiction to review" them, 618 the Court
allowed judicial review on the ground that an earlier federal statute,
the Rehabilitation Act of 1973, prohibited discrimination against
handicapped persons.6 19 Since Congress passed both statutes, it
would have been necessary for the preclusion provisions in the VA
statute to apply specifically to the Rehabilitation Act.6 20
The Supreme Court again demonstrated the presumption of ju-
dicial review in MeNary v. HaitianRefugee Center.6 21 The Haitian
Refugee Center, on behalf of a class of alien farm workers, alleged a
pattern of due process violations on the part of the U.S. Attorney
General in determinations of amnesty under federal law.622 Pursuant
to the Special Agricultural Workers Program of the 1986 Immigra-
tion Reform and Control Act, 623 the Attorney General was empow-
ered to grant temporary residency to illegal alien farm workers who
had performed ninety days of agricultural work in the United States
between June 1, 1985, and May 1, 1986. The Attorney General ob-
jected to the suit on the ground that the matter was not yet ripe for
judicial review. 624 To the contrary, the Supreme Court ruled for the
class of farm workers holding that a "strong presumption" of judicial
the Medicare program).

615. 485 U.S. 535 (1988).
616. Id. at 539 (citing 38 U.S.C. § 211(a) (repealed 1991).
617. See id.
618. Id. at539 n.3 (quoting 38 U.S.C. § 211(a) (repealed 1991)).
619. See id. at 552; see also Rehabilitation Act of 1973, 87 Stat. 355 (1973)
(current version as amended at 29 U.S.C. § 791 (1994)).
620. See Traynor,485 U.S. at 543.
621. 498 U.S. 479 (1991).
622. See id. at 479,487-88.
623. 8 U.S.C. § 1160(a) (1994).
624. See McNary, 498 U.S. at 483,491-92.
LOYOLA OFLOSANGELES LA WREVIEW [Vol. 34:81
review of administrative action exists when due process deprivations

are alleged. 25
Contrary to the presumption of reviewability, the Supreme Court
has occasionally inferred a statutory preclusion of review even
though Congress omitted to include a preclusion provision in the
statute. 26 In Morris v. Gresette,627 the Supreme Court refused to al-
low judicial review of a decision of the U.S. Attorney General not to
object to a state plan to implement voting rights on the ground that
time was of the essence.6 28 Judicial review would interfere with the
congressional intent that the voting rights plan be implemented
quickly and not infringe on state autonomy.629 Likewise, in Block v.
Community Nutrition Institute,3 ° the Court refused a consumer
group's request for judicial review of an agency decision to fix milk
prices. 63 ' When Congress expressly allowed wholesale buyers of
milk to seek judicial review,6 the
32
Court inferred that Congress in-
tended to preclude consumers
Despite these exceptions, the Supreme Court has adopted a
strong policy in favor of judicial review even in the face of preclu-
sion provisions.633 To interpret preclusion provisions literally might
infringe on the basic constitutional right to due process. As Justice
Brandeis stated: "The supremacy of law demands that there shall be
opportunity to have some court decide ...whether the proceeding in
which facts were adjudicated was conducted regularly., 63 4 Although
the Supreme Court has never explicitly ruled in this vein, it seems
that the fundamental right to due process in American constitutional
625. See id. at 499.

626. See, e.g., Switchmen's Union v. Nat'l Mediation Bd., 320 U.S. 297,
305-06 (1943) (holding that Board's certification of representation for collec-
tive bargaining not judicially reviewable). But see Leedom v. Kyne, 358 U.S.
184, 190-91 (1958) (holding that Board's determination of unit appropriate for
collective bargaining is reviewable).
627. 432 U.S. 491 (1977).
628. See id. at 504-05.
629. See id. at 504.
630. 467 U.S. 340 (1984).
631. See id. at 347.
632. See id.
633. See St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936)
(Brandeis, J., concurring).
634. Id. (Brandeis, J., concurring).
law would not permit Congress to absolutely insulate the exercise of

administrative power from judicial review.
b. sovereign immunity
The doctrine of sovereign immunity prohibits a private individ-
ual from suing the government, except when and to the extent that
the government has consented to be sued.635 It stems from the me-
dieval principle that "the King can do no wrong.,6 36 The modem
justification for the doctrine rests in the fact that the relief sought by
an individual would result in an "intolerable burden on governmental
functions, outweighing any consideration of private harm.Y637 The
doctrine exerts an influence over administrative justice since peti-
tions for remedy brought by private citizens against government offi-
cials constitute the crux of judicial review. 63S At issue is the immu-
nity of the federal government.
In 1976, Congress passed legislation under which the federal
government waived its sovereign immunity in all suits seeking relief
other than money damages. 639 This law governing the liability of the
federal government for claims of relief has been incorporated into the
APA. Section 702 of the APA permits an individual suffering an
injury due to administrative action to seek judicial review by naming
the United States as a defendant in an action for relief other than for
money damages, such as injunctive or declaratory relief.60 Pursuant
to section 703, the action may be brought against the United States,
the agency, or an appropriate administrative officer even when
statutory review procedures are absent or inadequate.6 1 Moreover,
section 704 permits judicial review of "final agency action for which
there is no other adequate remedy in a court .... Although the
federal government has not waived its immunity to suits for money
635. See Alden v. Maine, 527 U.S. 706 (1999).

636. See Kelly H. Armitage, It's Good to be King (At Least it Used to Be and
Could Be Again): A Texualist View of Sovereign Immunity, 29 STETSON L.
RE. 599, 662 (2000).
637. Washington v. Udall, 417 F.2d 1310, 1318 (9th Cir. 1969).
638. See id. at 1319.
639. See 5 U.S.C. §§ 702-703 (1994).
640. See id. § 702.
641. See id. § 703.
642. Id. § 704.
damages, the term "money damages" is narrowly construed. It signi-
fies only money compensation for damages suffered; it does not pre-
vent specific relief such as restitution or declaratory judgment that
might compel the defendant to pay a money judgment.643
5. Standard of judicial review
Perhaps the most critical issue in determining the relationship
between the federal judiciary and the administrative agencies is the
extent of the court's power to substitute its judgment for that of the
agency. This issue is often referred to as the "scope" or "standard"
of judicial review. The standard of judicial review depends on the
precise sort of administrative action, which is being challenged, upon
judicial review. A case generally presents both questions of law and
questions of fact that must be answered by the ALJ in reaching the
decision. Both agency fact-finding and determinations of law are
subject to judicial review, but the standard of review differs for fac-
tual and legal determinations.644 The APA and judicially created
standards of review rely on phrases such as "substantial evidence"
and "arbitrary and capricious., 645 Because the meaning of such
phrases remains somewhat ambiguous and lacks a definite precision,
the Supreme Court has afforded judges a great deal of flexibility to
respond to the equities of individual fact patterns.646 Although re-
viewing courts are often deferential to agency determinations, a basic
premise of judicial review remains647
that the rule of law is preferable
to unfettered agency discretion.
a. findings offact
A question of basic fact is one that can be made without knowl-
edge of the applicable law. Who did what, when, and where are
simple kinds of questions of fact. Questions of fact increasingly in-
volve complex scientific or technical information based on expert
testimony. While these determinations belong to the jury in a trial,
most often the ALJ resolves both the factual and legal issues in an
643. See Bowen v. Massachusetts, 487 U.S. 879 (1988).

644. See STRAUSS, supra note 80, at 244-61.
645. See Glickman v. Wileman Bros. & Elliott, 521 U.S. 457, 466 (1997).
646. See id.
November 2000] COMPARISON OFADMINISTRATrE LAW 179
administrative hearing. 648 Like the jury, the AD must weigh the
credibility of the witnesses and other evidence on the record to reach
a finding of fact. Pursuant to the APA, a factual finding should be
set aside by a reviewing court only if it is unsupported by "substan-
tial evidence" on the "whole record. 6 49 Substantial evidence con-
stitutes relevant evidence that "a reasonable mind might accept as
adequate to support a conclusion. ' 650 Under the substantial evidence
standard, a court should not substitute its finding for that of the
agency; rather, even if a court disagrees with the agency finding of
fact, the court must affirm the finding as long as the finding is rea-
sonable. 5 ' The phrase "whole record" means that a finding of fact is
reasonable if one considers the entire record. The Supreme Court
has indicated that Congress intended the phrase to favor a stricter re-
view of agency fact-finding. 52 However, the whole record require-
ment more often means that if a case is a close one with evidence on
both sides, the agency finding of fact will be upheld.6 53 Thus, the
substantial evidence on the whole record test makes for affirmance of
administrative fact-finding in almost every case, and only when there
is simply no credible evidence to support the finding will a court
substitute a contrary finding.654
Sometimes a court employs different language for the standard
of review for a finding of fact, setting it aside only if it is "clearly er-
roneous." 655 According to the Supreme Court, "[a] finding is 'clearly
erroneous' when although there is evidence to support it, the re-
viewing court on the entire evidence is left with a definite and firm
conviction that a mistake has been committed." 656 Comparing the
substantial evidence and clearly erroneous standards, some com-
mentators assert that the latter allows the reviewing court broader
648. See id.

649. See 5 U.S.C. §706(2)(E).
650. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
651. See Am. Textile Mfr. Inst. v. Donovan, 452 U.S. 490, 540-41 (1981).
652. See Universal Camera Corp. v. NLRB, 340 U.S. 474,493-96 (1951).
653. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377-78 (1989).
654. See id. at 378.
655. See United States v. United States Gypsum Co., 333 U.S. 364, 394-95
(1948).
656. Id. at395.
authority.657 Other commentators consider the standards to be

slightly different linguistic formulations of the same basic guide-
line.658 In this view, the two standards "are, in practice, so nearly
alike that only the scholastic mind of the hyper-critical law review 659
writer presumes to see any real difference between them.,
Whether a real difference exists between the terms or not, the notion
or sense of fairness seems to be the underlying concern. As one
commentator put it, "the judge may-indeed must--reverse if as he
conscientiously sees it the finding is not fairly supported by the rec-
ord; or to phrase it more sharply, the judge must reverse if he cannot
660
conscientiously escape the conclusion that the finding is unfair."
b. conclusions of law
An administrative agency frequently must determine the mean-
ing of statutes, its own regulations, and other sources of law in order
to resolve an adjudication between an individual and the agency.6 61
Such determinations of law are generally given strong deference
upon judicial review.662 The Supreme Court exhibited strong defer-
ence to an agency's legal conclusions in Chevron U.S.A., Inc. v.
Natural Resources Defense Council.663 In this case, the Environ-
mental Protection Agency (EPA) adopted a rule which interpreted
the term "stationary source" in the Clean Air Act to refer to an entire
664
manufacturing plant, rather than an individual device in the plant.
The effect of the EPA rule was to measure the entire amount of air
pollution caused by a manufacturing plant. 66 5 The rule allowed the
657. See, e.g., Robert L. Stem, Review ofFindings ofAdministrators,Judges

andJuries: A ComparativeAnalysis, 58 HARv. L. REv. 70, 88-89 (1945).
658. See, e.g., Michael J. Pender, JudicialReview ofPTO Patentability:De-
terminations Under the SubstantialEvidence Standardof Review, 82 J. PAT. &
TRADEMARK OFF. Soc'Y 431, 444-45 (2000).
659. Arthur T. Vanderbilt, Introduction, 30 N.Y.U. L. REv. 1267, 1268
(1955).
660. Louis L. Jaffe, JudicialReview: "SubstantialEvidence on the Whole
Record", 64 HARv. L. REV. 1233, 1325 (1951) (referring to Justice Frank-
furter's opinion in Universal Camera,340 U.S. at 488).
661. See STRAuss, supra note 80, at 140.
662. See id. at 261-71.
663. 467 U.S. 837 (1984).
664. See id. at 840.
665. See id.
November 2000] COMPARISONOFADAMNISTRATIVELAW 181
manufacturer to install new sources of pollution in the plant as long

as it removed another source of pollution of equal or greater con-
tamination. 666 In upholding the EPA rule, the Supreme Court pre-
scribed two inquiries that a reviewing court should conduct when
considering an agency's conclusions of law.667 First, the reviewing
court must determine whether "Congress has directly spoken to the
precise question at issue. 668 In other words, the reviewing court
must determine whether the statute has a plain meaning. If the
agency interpretation of the statute differs from the plain meaning
intended by Congress, the court must reverse the conclusion and sub-
stitute the correct interpretation. 669 Second, if the statute has no plain
meaning, the court should inquire as to whether the agency interpre-
tation is 'permissible or a "reasonable interpretation."670 Since
Chevron involved a highly technical environmental problem, the
facts of the case lent67themselves
1
to judicial deference towards the
agency interpretation.
c. administrativediscretion
In addition to the interpretation of statutes, reviewing courts are
very often called upon to review an agency's exercise of discretion.
Indeed, discretion is at the heart of administrative power.67 - Admin-
istrative discretion signifies the power possessed by an official or
agency to choose among a number of possible courses of action. As
one commentator has indicated, "[w]ithout judicial control, purely
personal power, whether in the hands of a contemporary administra-
tor or the caliph of the Arabian knights, tends by its very nature to be
arbitrary.3 673 Section 706 of the APA provides that the reviewing
court shall "hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
666. See id.

667. See id. at 842-43.
668. Id. at 842.
669. See id. at 843.
670. Id. at 843-44.
671. But see Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 413
(1971) (stating that the exemption for actions committed to agency discretion
does not apply when other law exists).
672. See SCHWARTZ, supra note 495, at 652-53.
673. Id. at 653-54.
discretion., 674 For the purpose of judicial review, the three terms-
arbitrary, capricious, and abuse of discretion-are equivalent.
In Citizens to Preserve Overton Park v. Volpe, the Supreme
Court held that in reviewing an exercise of discretion, a court must
engage in a "substantial inquiry," although an agency decision is en-
titled to a "presumption of regularity., 675 The Court suggested a
four-step analysis. 6 76 First, the reviewing court must ask whether the
agency decision meets the Chevron criteria.6 77 Second, the court
must determine whether the agency decision considered "all of the
relevant factors., 678 The third step in the analysis is the crux of re-
view of administrative discretion. Even if the agency exercised dis-
cretion within the parameters of Chevron and considered all the cor-
rect factors, the reviewing court should find an abuse of discretion if
the agency committed a "clear error of judgment., 679 Finally, the re-
viewing court must also consider whether the agency followed the
correct procedures when it exercised discretion.6 8' As with the case
of fact-finding and conclusions of law, the courts have shown con-
siderable deference to agency discretion.6 8 1 As then Circuit Judge
Antonin Scalia expounded in Association of Data ProcessingService
Organizations v. Board of Governors of the Federal Reserve Sys-
tern, 682 the difference between the substantial evidence and the arbi-
trary and capricious standards is that in the former the reviewing
court seeks support for factual finding in the record, while in the lat-
ter the court poses the same quality of question to the nonfactual
conclusions.6 8' Essentially, upon judicial review, the court inquires
whether the administrative decision is reasonable and meets the re-
quirements of fundamental fairness. Confronted with an
674. 5 U.S.C. § 706(2)(A) (1996).

675. See Volpe, 401 U.S. at 415.
676. See id. at 415-17.
677. See id. at 415-16.
678. Id. at 416. But see Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.
633, 645-46 (1990) (holding that failure to consider every potentially relevant
area of concern did not render an administrative decision arbitrary and capri-
cious).
679. Volpe, 401 U.S. at 416.
680. See id. at417.
682. 745 F.2d 677 (D.C. Cir. 1984).
683. See id. at 683.
November 2000] COMPARISON OFADMINISTRATI ,E LAW 183
administrative decision that, in its judgment, falls outside the pa-

rameters of reasonableness and fairness, the federal court will reverse
the decision and remand to the agency for appropriate action.
d. de novo review
While the standard of judicial review usually depends on the
distinction between law and fact, the Supreme Court has held that
when the challenged agency decision is based on either a constitu-
tional or jurisdictional issue, the appropriate standard is de novo re-
view. The doctrine originates from the 1920 case of Ohio Valley
Water Co. v. Ben Avon Borough,6 84 in which the Court ruled that a
judicial tribunal must reach its own independent judgment when an
exercise of administrative power resulted in the taking of private
property by a public utility in violation of the due process clause of
the Constitution. 685 The so-called Ben Avon doctrine requires full
judicial review when a constitutional issue is raised.6 8 6 However,
many commentators have maintained that the Ben Avon doctrine has
died gradually through numerous inconsistent Supreme Court deci-
sions. 687 Nonetheless, the Supreme Court has never expressly over-
688
ruled the doctrine, and federal courts continue to apply it.
684. 253 U.S. 287 (1920).

685. See id. at 289.
686. See id.
687. See, e.g., Leslie A. Glick, Independent JudicialReview of Administra-
tive Rate-Making: The Rise and Demise of the Ben Avon Doctrine, 40
FORDHAM L. REv. 305, 306-07, 314 (1971). For an inconsistent decision, see
RailroadCommission v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940).
688. See Glick, supra note 687, at 313 n.32, 314. See generally California v.
Southland Royalty Co., 436 U.S. 519, 525-26 (1978) (upholding an adminis-
trative interpretation of the Natural Gas Act on the ground that the interpreta-
tion was reasonable); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38,
52 (1936) (holding that courts must review constitutional issues independently
from the findings of the Secretary of Agriculture); Pichotta v. City of Skag-
way, 78 F. Supp. 999, 1004 (D. Alaska 1948) (stating that when a case presents
an issue of constitutional law, the reviewing court may determine the issue
upon its own, rather than the administrative, record); Ati. Coast Line R.R. Co.
v. Pub. Serv. Comm'n, 77 F. Supp. 675, 680 (D.S.C. 1948) (stating that an in-
dependent action in equity brought pursuant to an act of Congress deserves de
novo review).
IV. ANALYTICAL SUMMARY
A. Nature ofAdministrativeJustice in Each System of Law

Although the philosophical starting points differ, the end of each
system of administrative law remains the protection of some individ-
ual or group aggrieved through the unjust use of government power.
With the promulgation of the 1983 Code, Pope John Paul II perfected
many features of modem ecclesiastical administrative justice. 89
Consistent with the ecclesiology of Vatican II, the Code implements
a juridic structure designed to insure that administrative justice re-
flects the mystery of communio 90 In accord with the unity of sacred
power that finds its matrix in hierarchical communion, it officially
adopted the threefold distinction of legislative, judicial, and execu-
tive power. 9 ' On the basis of the proposed Lex Fundamentalis, it
enumerated the rights of all the Christian faithful.6 92 There is in the
new Code a clear sense that an injury to any member of the church as
a result of an exercise of administrative power must be addressed
since it disrupts the communion of the Mystical Body of Christ. Ti-
tle IV of Book I defines the single administrative act to include a de-
cree, precept, or rescript which is issued by one who possesses ex-
ecutive power and which promotes compliance with the law and, or,
grants some favor. 93 The single administrative act may be the object
for scrutiny in the process of hierarchical recourse. In its most pro-
found sense, the process of hierarchical recourse can be understood
as an instrument of the healing grace of Christ in the service of the
communion of the faithful.
The American constitutional democracy rests on the founda-
tional principle that government institutions which set and enforce
public policy must be politically accountable to the electorate. 94
This principle stems from the eighteenth-century political theory in
689. See loannes Paulus Pp. II,supra note 74, at 128; see also supra p. 95
and note 74.
690. See loannes Paulus Pp. II, supra note 29, at 128; see also 1983 CODE
c.1733.
691. See Ioannes Paulus Pp. II,supra note 29, at 1.
692. See 1983 CODE c.204, § 1, cc.208-231.
693. See id. c.35.
694. See supra pp. 112-114.
which an autonomous individual encounters the free market with a

minimum of government regulation. 695 The Framers of the Consti-
tution attempted to safeguard the principle by establishing a federal
government of limited powers that were distributed into distinct ex-
ecutive, legislative, and judicial branches of government. 96 The tri-
partite separation was intended to minimize the risk of arbitrary gov-
ernment.697 Given the inherent institutional limitations of each of the
three branches, the requisite level of government regulation requires
numerous specialized agencies to which were delegated broad law-
making, executory, and adjudicatory powers. 698 American adminis-
trative justice may be understood as an analysis of the legal limits set
on the powers and actions of administrative agencies. Although the
agencies are delegated broad government powers, this does not imply
freedom from political accountability. According to the conven-
tional model, policy oversight by elected officials and judicial review
insure that administrative agency power is kept in check.6 99 These
elements were reflected in the Administrative Procedure Act (APA)
of 1946.700 At the core of the discussion of arbitrary government
power is the notion of individual freedom as the absence of govern-
ment restraint.7 0 ' To the extent that freedom thus conceived can be
maintained, the individual is vested with certain legal rights.702 One
of the central functions of the judicial branch remains the protection
of individual
3
and minority group rights against majoritarian unfair-
70
ness.
To juxtapose the theological language of communio against that
of liberal political theory reveals the fundamentally different starting
695. See LOCKE, supra note 185, at 63-77.

696. See U.S. CONST. art. I, § 9 (establishing Congress as the national legis-
lative body); id. art. II, § 9 (establishing the executive branch); id. art. I, § 2
(establishing the federal court system).
697. See STRAuss, supra note 80, at 501; TRIBE, supra note 7, at 15.
698. See suprapp. 117-119 and accompanying notes.
699. See suprapp. 118-118.
700. See 5 U.S.C. §§ 551-559 (1994); see also supra p. 119 and note 219.
701. See suprapp. 90-91 and note 50.
702. See suprapp. 166-167.
703. See New York City Transit Auth. v. Beazer, 440 U.S. 568, 609 (1974)
(holding that laws affecting a group of minorities within the population "with-
out any justification and, with its irrationality and invidiousness thus uncov-
ered, must fall before the Equal Protection Clause").
LOYOLA OF LOS ANGELES LAWREVIEW [Vol. 34:81
points of the two systems of administrative justice. In accord with

liberal political theory, the tripartite distinction of separate govern-
ment powers stems from respect for individual autonomy and suspi-
cion of government authority.1 4 Freedom is conceived of in terms
of the absence of government restraints. 70 5 The rule of law is in-
tended to facilitate equal opportunity in the functioning of the market
economy.70 6 In comparison, canon law reflects the belief that the
unified power of governance is vested in one authority as part of the
economy of salvation.70 7 Authentic freedom is thought to involve a
harmonious integration of rights and responsibility. 70 1 The faith of
the individual believer engenders a trust and respect for ecclesiastical
authority who is expected always to act to facilitate the experience of
communion and nourish the lives of individuals.70 9 Yet, each system
of administrative law is designed to the end of insuring the correct
balance between the common good and individual rights. 710 Both
systems attempt to produce this balance by affording official and ef-
ficient recourse to an individual, who has been aggrieved by an un-
just act of administrative power, through appeal and judicial re-
7 11
view.
B. Comparisonof the Administrative ProceduresPriorto Review at

the Supreme Tribunals
The administrative procedures of the ecclesiastical and Ameri-
can systems reflect the crucial theoretical differences between the
two systems of administrative justice. In fidelity to the reality of
communio, canon law posits a system of hierarchical recourse that
culminates at the appropriate Dicastery of the Roman Curia as speci-
704. See STRAUSS, supra note 80, at 501; STREET & BRAZIER, supra note
187, at 31; TRIBE, supra note 7, at 15.
705. See STRAUss, supra note 80, at 501.
706. See FULLER, supra note 57, at 209-10.
707. See GHIRLANDA, supra note 78, at 255-57.
708. See 1983 CODE c.204; see also JAVIER MARTINEZ-TORRON, DEREHO
ANGLOAMERICANO Y DERECHO CANONICO, LAS RAICES CANONICAS DE LA
COMMON LAW 43-49 (1991).
709. See supra p. 104.
710. See LABANDEIRA, supra note 20, at 270-77; DAVIS, supra note 21, at
25.
711. See Koch, supra note 6, at 471-78; see also Beal, supra note 23, at 70-
106.
November 2000] COMPARISONOFADMINISTRATIVELAWF 187
fled in Pastor Bonus. 712 Consistent with the delegation of distinct

legislative and judicial powers, American administrative agencies
exercise rulemaking and adjudicatory functions. 71 3 The latter of
these functions may be divided into formal and informal adjudica-
tions.714 Prior to official recourse against an act of administrative
power, both systems of administrative justice urge that parties have
recourse to alternate forms of dispute resolution. 1 5 In ecclesiastical
law, this exhortation is rooted in the mystery of communio, which
seeks reconciliation rather than the rupture of communion which can
result from the contentious-administrative process.71 6 While the
American system does not share the theological foundation, it prefers
alternate means of dispute resolution for practical reasons. 717718 Such
alternatives generally result in a speedier decision at less CoSt.
The initial recourse in an ecclesiastical administrative dispute is
to the one who issued the decree which is being challenged.71 9
Given the communio of the church, such a procedure reflects a basic
trust in the goodness, justice, and charity of one who exercises ad-
ministrative power.720 In contrast, American administrative justice
functions from the rule against bias, or the principle that "no one
may be the judge of his or her own case.,' 721 No matter how small
the adjudicator's interest might be, no matter how unlikely it is to af-
fect the judgment, the adjudicator cannot serve as the judge of an is-
sue or case inwhich he or she has rendered the decision under ap-
peal.72 2 Thus, while a bishop must be requested to reconsider his
own administrative act, an independent Adminstrative Law Judge
712. See 1983 CODE cc.1732-1739.

713. See U.S. CONST. art. I, § 8; see, e.g., In re Permanent Surfhce Mining
Regulation Litig., 653 F.2d 514 (D.C. Cir. 1981).
714. See 5 U.S.C. § 553(c) (1994) (discussing informal adjudications); id.
§§ 551-559 (discussing the formal adjudication process).
715. See suprapp. 106-107 and note 145, p. 125 and note 252.
716. See 1983 CODE c.1733, § 1; see also Coccopalmerio, supra note 144, at
670; Grocholewski, supra note 144, at 349-50.
717. See 5 U.S.C. §§ 571-583.
719. See Gordon, supra note 16, at 253-55.
721. STREET & BRAZIER, supra note 187, at 583-86.
722. See STREET & BRAZIER, supra note 187, at 583-86.
(ALJ) will hear the case against the decision of an American admin-
istrator.723
As the process of hierarchical recourse moves from one level of
superior to the next, appeals from the decisions of diocesan bishops
normally are taken to the appropriate Dicastery of the Roman Cu-
ria.72 Recourse from the administrative act of a provincial superior
of an institute of consecrated life would be to the supreme moderator
of the institute, and only then to the Congregation for Institutes of
Consecrated Life and Societies of Apostolic Life.725 In the American
system, an appeal from the initial decision of an ALJ would normally
follow an appeals process established within the particular adminis-
trative agency with the agency head as the ultimate adjudicator.726
C. Comparison of the Structures of the Supreme Tribunals
The comparison of the structure of the Apostolic Signatura with
that of the Supreme Court juxtaposes continental and common-law
systems. It discloses five significant differences. First, pursuant to
Ignacio Gordon's analysis, ecclesiastical administrative justice con-
stitutes a system of hierarchical recourse until it reaches the level of
the Apostolic Signatura.72 7 Canon law draws a formal distinction
between judicial and administrative matters, so the Apostolic Signa-
tura is divided into two separate Sections of the same judicial tribu-
nal.728 It has been suggested that the creation of the Second Section
resulted in a system of double jurisdiction within the church's su-
preme administrative tribunal.7 29 Although the Second Section, in
fact, shares many characteristics with the French Court of Cassation,
it does not exist as an absolutely independent body from the ordinary
judicial tribunal, the First Section. 730 Pursuant to Pastor Bonus, the
Apostolic Signatura might be described as one supreme tribunal
723. See 5 U.S.C. § 3105.

724. See supra pp. 105-105; e.g., PASTOR BONUS arts. 122-124.
725. See Decision of the Apostolic Signatura, 21 November 1987, supra note
348, at 88-94.
726. See id. at 95.
728. See id. at 15 n.2.a.
729. See id. at 67; see also VALDRIUNI, supra note 307, at 65; Lobina, supra
note 307, at 397.
730. See PASTOR BONUS arts. 123-124.
which is divided into two sections, the first section of which exer-
cises jurisdiction over the ordinary judicial forum, and the other sec-
tion of which exercises jurisdiction over extrajudicial, or administra-
tive, matters. 73 The third section of the Signatura functions as a
congregation entrusted
732
with vigilance over the administration of jus-
tice in the church.
In comparison, the American system is what Ignacio Gordon de-
scribes as one of single jurisdiction.73 3 Under the terms of Article IlI
of the United States Constitution, the Supreme Court constitutes the
supreme judicial tribunal, the decisions of which are binding on the
inferior federal courts7 34 Even the administrative adjudication con-
ducted by an ALU is considered to be essentially judicial in nature.7 3
Moreover, an appeal from the agency adjudication is taken to the ap-
propriate federal district or appeals court. 36 These federal courts are
the ordinary judicial forum 737 The courts represent an intermediate
level of recourse between the administrative adjudication and the
Supreme Court, which serves as the supreme judicial tribunal for
both judicial and administrative matters. 738 Typical of a system of
single jurisdiction, American law considers administrative cases as
one branch of the civil law which are739heard at the Supreme Court
without the formal-bilateral distinction.
Second, although both the Apostolic Signatura and the Supreme
Court constitute supreme administrative tribunals, there is a large de-
gree of difference in how their authority is understood. The Apos-
tolic Signatura ranks as an equal among the other Roman Dicaster-
ies.7 40 Like the French Court of Cassation, it hears cases in order to
determine whether an error of law has occurred in the previous pro-
cedure. 74 ' If it determines that such an error occurred, it remands the
731. See Gordon, supra note 16, at 15 n.2.a.

732. See Grocholewskd, supra note 306, at 404, 406, 412.
734. See U.S. CONST. art. III, § 1.
735. See 5 U.S.C. §§ 551-555, 557(c).
736. See Currie & Goodman, supra note 375, at 6-7.
737. See id.
738. See BATORET AL., supra note 362, at 46.
739. See suprap. 160.
740. See PASTORBONUs art. 122; Alesandro, supra note 25, at 12.
741. See PASTOR BONUs art. 1, § 1, art 123, § 1.
case back to the authority that issued the decree for a new decision or
correction. 742ThSu
The Supreme Court stands alone as the superior tribu-
nal of the ordinary and judicial forum. 743 When it reviews the de-
termination of a lower court, the Supreme Court's decision is conclu-
sive of the matter; the lower courts and administrative agencies are
bound to follow it.7 4 Supreme Court decisions are considered
745
highly important precedents which constitute part of the law.
Third, the important role played by the officials of the Apostolic
Signatura such as the secretary and promoter of justice as well as all
those who assist them has no parallel at the Supreme Court. The of-
ficials of the Signatura actively engage in the process of the discov-
ery of the truth of the matter under consideration, and their opinions
are officially recognized as an aspect of the overall process. 746 While
it is true that each of the nine Supreme Court Justices is assisted by
several law-clerks, as well as other officers of the Court, these clerks
and officers have little, if any, official role in the actual disposition of
7
74
a case.
Fourth, the role of the advocates reflects the continental with
common-law comparison. The procurator-advocates who represent
individuals at the Second Section are officially approved agents who
assist the tribunal in discerning the truth of the case. 74 8 Theoreti-
cally, they are dedicated to the proposition that their function at the
tribunal is to obtain a just result rather than to win victory for their
particular clients. 749 The common-law system has long understood
the role of lawyers to be more adversarial than their continental
counterparts. 750 Although it would be grossly unfair to cast them as
742. See 1983 CODE c.1739.

743. See U.S. CONST. art. III, § 1; KLEIN, supra note 363, at 168.
744. See generally STRAUSS, supra note 80, at 7 (noting that the Supreme
Court's "constitutional judgments cannot be changed by ordinary legislation").
745. See id. at 82; KLEIN, supra note 363, at 167-72.
746. See PASTOR BONUS arts. 183-185; Baccari, supra note 341, at 174-75.
747. See CARRINGTON ET AL., supra note 380, at 44-46.
748. See Baccari, supra note 341, at 174-75; Grocholewski, supra note 307,
at 37-39.
749. See Baccari, supra note 341, at 174-75.
750. See generally BROWN, supra note 52, at 215-18 (comparing the prac-
tices of American lawyers to that of English Barristers); GOLDBERG ET AL.,
supra note 145, at 316-20 (discussing the different role of an attorney in dis-
pute resolution).
entirely uninterested in a just result for their cases, advocates before

the Supreme Court are concerned primarily with the interests of their
clients. 7 5 '
Fifth, the decisions of the Apostolic Signatura are generally not
published in deference to the privacy of the parties.752 When publi-
cation is permitted, it is generally with the understanding that the
identity of the parties remains anonymous.7 53 Since the common-law
tradition attributes precedential value to individual case decisions, all
the decisions of the Supreme Court are, of course, part of the public
record and highly scrutinized upon publication.
D. Comparisonof Due Processat the Supreme Tribunals

Both supreme tribunals mandate that a party must have ex-
hausted all administrative remedies before proceeding to judicial re-
view of the case.754 In the church, the individual must first exercise
recourse to the author of the challenged decree, and then to the next
competent authority up to the level of the appropriate Dicastery 7 55
In the American system, the petitioner must have exhausted all pos-
sible recourse within the administrative agency, and then to the com-
petent federal district or appeals court.75 6 When one considers the
amount of due process to be afforded an individual who brings a pe-
tition for remedy against an act of administrative power, there is a
striking similarity between the current practice of the Apostolic Sig-
natura and the Supreme Court. Essentially, both supreme tribunals
require the right to a fair hearing. The requirement means that no in-
dividual ought to be adversely affected by some administrative deci-
sion unless there has been sufficient notice of the case and a fair op-
portunity to be heard. 5 While the minimum due process
requirement may be explained in light of the necessities of institu-
tional limitations, it also constitutes the requirements traditionally
751. See BROWN, supra note 52, at 215.

752. See NORmAE SPECIALES arts. 97-98.
753. See id. art. 98.
754. See STERN & GRESSMAN, supra note 384, at 27-28.
755. See 1983 CODE c.1734, § 1,c.1735.
756. See STRAuss, supra note 80, at 81.
757. See 5 U.S.C. § 556(d) (1994); e.g., Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950); Painter v. Liverpool Gas Co., 111 Eng.
Rep. 478,484 (K.B. 1836).
derived from natural law. Right reason seems to advise that one
must know the charges or matter of the pending case and that one
ought to be heard, either orally or in writing. Beyond these minimal
requirements of practical and natural reason, neither supreme tribu-
nal seems willing to impose a more elaborate due process on the vast
majority of administrative decisions.
Generally speaking, the American system demonstrates a more
flexible and highly developed due process requirement than the hier-
archical recourse and contentious-administrative recourse of canon
law. At the same time, the American procedure tends to be more ad-
versarial and less concerned with an objective quest for the truth of
the matter than its ecclesiastical counterpart. Formal administrative
hearings conducted under the APA exhibit a full range of procedural
safeguards including, inter alia, knowledge of opposing evidence
prior to the hearing, representation by counsel, and the opportunity to
call and cross-examine witnesses.75 8 In most administrative adjudi-
cation, however, the Supreme Court simply requires that an informal
hearing with minimum due process has been conducted. 759 Some-
times, it suffices for the ALJ or other administrative official to re-
view the documents submitted by the parties in order to fulfill the
due process requirement for the opportunity to be heard. 760 The
flexibility of the American system allows it to respond to the nature
of individual cases. Although not required to do so, the superior in
the canonical process of hierarchical recourse might upon occasion
exercise discretion to conduct a more formal type of hearing.76' Yet,
since it is not required by canon law, the Apostolic Signatura would
not likely find a violation of law if the hierarchical superior chose not
to conduct a formal hearing.762
Due process also depends on the competency of each of the su-
preme tribunals.763 Pursuant to Pastor Bonus, the competency of the
Second Section of the Apostolic Signatura is to determine whether an
administrative act, in deciding or proceeding, amounts to a violation
758. See 5 U.S.C. § 556(d).

759. See STRAUss, supra note 80, at 146-47.
760. See id.
761. See 1983 CODE c.1738.
762. See Alesandro, supra note 25, at 12-13.
763. See PASTOR BONUs arts. 122-124; 1983 CODE c.1445.
of some law. 7 " While technically it does not reach the merits of the
case, an examination of several recent decisions raises some question
as to whether it is possible to fulfill the mandate of Pastor Bonus
through a consideration of the law alone.765 The facts of certain
cases seem to render it difficult, if not impossible, to decide whether
a violation of law occurred without some examination of the overall
merits of the case.766 When Pastor Bonus expanded the competency
of the Second Section to include the determination of damages, the
problem was further compounded. Absent a consideration of all the
aspects of a case legal and factual, it would seem difficult for the su-
preme administrative tribunal to fix a certain financial amount as
compensation for injury to a party.767 The competence of the Apos-
tolic Signatura needs clarification. Because its competency is limited
to violations of law, it is possible that the Second Section of the Ap-
ostolic Signatura could be confronted with what appears to be an
unjust but nonetheless lawful result. Like the Second Section, the
Supreme Court is a tribunal of limited jurisdiction.765 The primary
source of the Supreme Court's jurisdiction to review acts of admin-
istrative power is statutory authorization by Congress. 769 Such
statutory authorization may be either expressed or implied, and alter-
natively, Congress may preclude judicial review of certain kinds of
administrative decisions. 770 Moreover, judicial review by the federal
courts is sometimes unavailable as a result of the doctrine of sover-
eign immunity. The Supreme Court itself has tended to take a broad
view of its jurisdiction over administrative agency decisions, al-
though it often exercises deference to such decisions on the grounds
of administrative expertise.7 7
764. See supra note 436.

766. See LABANDEIRA, supranote 20, at 729-34.
768. See U.S. CONST. art. HI, § 2.
769. See 5 U.S.C. §§ 701-706; STRAuss, supra note 80, at 81.
770. See U.S. CONsT. art. III, § 2; Koch, supra note 6,at 479-80.
771. See Koch, supra note 6, at 480-81.
E. U.S. Supreme Court Standards ofReview

The Supreme Court has relied on several deferential standards,
employed by itself and the lower federal courts, to review adminis-
trative adjudications. 772 An administrative finding of fact must be
supported by substantial evidence considered on the record as a
whole. 773 An interpretation of a statute by an administrative agency
will generally be upheld upon judicial review as long as the inter-
pretation was reasonable.774 A discretionary decision, which is made
pursuant to law, will often only be reversed when it is determined to
constitute an abuse of discretion because it was arbitrary, capricious,
and discriminatory. 775 These standards of review reflect the Court's
deference to the role of the fact-finder and to administrative agency
expertise.
Upon occasion, the Court chooses a higher level of judicial
scrutiny.776 Particularly, when review of an administrative decision
turns on a novel point of law or an interpretation of the Constitution
or a federal statute, the Court may elect to review the matter de
novo. 777 Thus, the procedure of the Court permits it wide latitude in
which to exercise judicial review of administrative action, but the
Court prefers judicial deference to most administrative decisions.778
Although the federal courts show a high degree of judicial deference
to administrative discretion, the development of the hard-look doc-
trine demonstrates that the courts have on some past occasions been
willing to set aside an administrative decision when, in their
772. See id. at 471. See generally STRAUSS, supra note 80, at 81-82 (dis-
cussing the function of administrative review through petitioning the Court for
certiorari).
773. See 5 U.S.C. § 706(2)(e) (1994); Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1981).
774. See Chevron U.S.A. Inc. v. Natural Res. Def. Council Inc., 467 U.S.
837, 844-45 (1984); Koch, supra note 6, at 492.
775. See 5 U.S.C. § 706(2)(A) (1996); Chevron, 467 U.S. at 843-44.
776. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 267-71 (1970); Wong Yag
Sung v. McGrath, 339 U.S. 33, 50-51 (1950).
777. See generally Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S.
287 (1920) (noting that a state may utilize its own judicial tribunals to formu-
late judgments as to both law and fact so long as it does not contravene the
U.S. Constitution).
778. See Koch, supra note 6, at 471-94.
judgment, the decision fails to meet the requirements of fundamental

fairness or yields an unjust result in a particular case. 779 The adop-
tion of these standards of review might be most beneficial to the Ap-
ostolic Signatura in the contentious-administrative process.
V. CONCLUSION
This comparative study of canon law and federal law has sug-
gested that the individual human person constitutes the proper focus
of administrative law. The two systems of law seem to be grounded
in different assumptions about the nature of the human being in rela-
tion to society and government power. Ecclesiastical law manifests
the theological concepts of communion and the mystical Body of
Christ. 780 The modem liberal democracy focuses on individual
autonomy and suspicion of government power. Despite these differ-
ent theoretical starting points, each system of law is designed to es-
tablish the correct balance between the rights of the individual person
and the common good of society. Both systems of administrative
law rely on a relatively informal process for review of administrative
action prior to judicial review.78 For an individual person, who re-
mains dissatisfied with the outcome of the informal process of re-
course, there remains the possibility of a more formal review. Es-
tablished in canon law as a distinct administrative tribunal, the
Second Section of the Apostolic Signatura comprises the only ad-
ministrative tribunal in the church.7 82 The federal courts of the
United States and ultimately the Supreme Court afford the opportu-
nity for formal judicial review of administrative power.7 3 While the
competency of both supreme tribunals is circumscribed by statute,
they nonetheless have been established as the final judicial means to
correct an injury caused by an administrative act. 784 Given the
779. See id. at 489; STRAUSS, supra note 80, at 267-68.

780. See Alesandro, supra note 25, at 11; Ladislas Orsy, Theology and
Canon Law: An hIquiry into Their Relationship, 50 JuRisT 402, 412-13, 416-
17 (1990).
781. See Currie & Goodman, supranote 375, at 39.
783. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
196 LOYOLA OFLOS ANGELES LA WREVIEW [Vol. 34:81
discretionary nature of administrative power, this judicial function is

crucial to insure justice for individual human beings.

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Notre Dame Law School

A Comparison of the Administrative Law of the

Follow this and additional works at: http://scholarship.law.nd.edu/law_faculty_scholarship

* Assistant Professor of Law, St. John's University School of Law.

ADMINISTRATION (Ferrel Heady & Sybil L. Stokes eds., 1962); 1 WILLIAM

the Supreme Court.6 Despite the difference in terminology, both

6. See generally Charles H. Koch, Jr., Judicial Review of Administrative

and deportation, education, housing and urban development, and the

13. No reliable longitudinal study could be located that segregated the

second model, termed "single jurisdiction," depends on judicial re-

18. See id.

To be sound, any discussion of these administrative processes must

(discussing the uses of administrative discretion and justice as exercised by ec-

Just as with all other aspects of ecclesiastical law, administrative

and canonical viewpoint, this means that the church is thought to

34. Paulus Pp. VI, Allocutiones: Ad Praelatoset Officiales Tribunalis Sa-

ultimately measured, not by the standards of civil jurisprudence, but

yield justice, the normal route is not to grant a dispensation, but to

44. See U.S. CONST. amends. I-X.

regulation. 49 Pursuant to pristine liberal political theory, freedom

Hart argued that the judges create law in difficult or "indeterminate

scrutiny of reason. These criteria would apply to law made by both

60. Duncan Kennedy, Legal Education as Trainingfor Hierarchv, in THE

have generally been more successful in deconstructing liberal theory

above, however, is a common theme. See id. at 94.

II. ADMINsTRATIVE LAW PRIOR TO REVIEW AT THE TRIBUNALS

1. Nature of ecclesiastical administrative law

69. 1983 CODE c.36, § 1.

Pontiff, exercise competence over petitions of remedy brought by in-

75. See id.

as early as the sixth century, bishops were delegating their judicial

A significant aspect of the distinction of functions of the power

long preferred "to speak of division of functions").

b. the relationbetween executive power and administrativeacts

92. See Klaus M6rsdorf De Actibus Administrativis In Ecclesia, in lus

observance of the law. Third, Canon 59 supplies the two essential

98. See id. c.59, § 1.

diocese by the "Diocesan Administrator,"' 0 8 and the conduct of a

108. See id. cc.418-430.

act become susceptible to administrative recourse." 8 Private acts of

trativam in iure canonico, 65 PERIODICA 5, 10 (1976).

c. hierarchicalrecourseand local administrativetribunals

d. hierarchicalrecourseand the Dicasteriesof the Roman Curia

2. Ecclesiastical administrative process

135. See supra note 70.

course against a single administrative act follows the process of hier-

a. avoiding contentiousprocess through conciliation

vors alternate means of dispute resolution as preferable to formal judicial pro-

same Canon requires that the request for revocation or emendation be

151. See id. § 2.

ii. suspending the effects of the decree

158. See id. c.1736, § 1.

process of hierarchical recourse.'64 In accordance with Section 2 of

164. For an analysis of several cases of administrative recourse to the Di-

B. American Administrative Law

1. Constitutional background: the separation of powers

180. See id. c.1747, § 3.

states has its own system of administrative justice, the subject at

powers in any one branch or office of government.' 87 The applied

the president, who exercises vast and somewhat undefined power.'93

lish a Post Office; to construct highways; to set a policy for immigration; to

an appurtenant to the theory of the separation of powers. Although

that, pursuant to the statute by which it was created, it referred to the

decided to emphasize a unitary presidency with full executive